BNS, BNSS, and Bharatiya Sakshya Adhiniyam: Tackling Online Frauds in the Digital Age
The rapid rise of digital transactions has transformed India's economy, but it has also fueled a surge in online frauds, from phishing scams to UPI frauds. To address these modern challenges, India introduced the Bharatiya Nyaya Sanhita (BNS), Bharatiya Nagarik Suraksha Sanhita (BNSS), and Bharatiya Sakshya Adhiniyam, replacing the Indian Penal Code (IPC), Code of Criminal Procedure (CrPC), and Indian Evidence Act, respectively. These new laws, effective from July 1, 2024, aim to modernize India's criminal justice system, particularly in combating cybercrimes. This blog explores the interplay of these laws with the Information Technology Act, 2000 (IT Act), the challenges in tackling online frauds, and the broader efforts needed to curb e-fraudsters who often operate with impunity.
The Role of BNS in Defining Cyber Offences
The Bharatiya Nyaya Sanhita (BNS) serves as India's new penal code, defining offences and their punishments. Unlike the IPC, the BNS explicitly addresses contemporary issues, including cybercrimes. For instance, Section 318(4) of the BNS defines cheating in the context of digital frauds, such as impersonation or deceit through electronic means, with punishments up to seven years' imprisonment. Similarly, provisions like Section 336 (criminal breach of trust) and Section 340 (forgery) have been adapted to cover digital transactions, complementing the IT Act's Section 66D (cheating by personation using computer resources) and Section 66C (identity theft).
The BNS strengthens the legal framework by aligning with the IT Act's focus on cyber-specific offences, ensuring that frauds involving UPI, phishing, or fake websites are clearly punishable. However, the effectiveness of these provisions depends on their enforcement, which is where the BNSS comes into play.
BNSS: Streamlining Investigation and Prosecution
The Bharatiya Nagarik Suraksha Sanhita (BNSS) governs criminal procedure, outlining how investigations, arrests, and trials are conducted. To address the complexities of cybercrimes, the BNSS introduces provisions for digital investigations, such as mandatory forensic analysis for serious offences (Section 176) and the use of electronic summons (Section 61). It also allows police to conduct preliminary inquiries in cognizable cases (Section 173), which is critical for online frauds where evidence is often digital and transient.
Despite these advancements, police face significant hurdles in tracking and tracing e-fraudsters. Cybercriminals often operate from different states or countries, using anonymized IP addresses, VPNs, or mule bank accounts. For example, a fraudster in Jharkhand may target victims in Maharashtra, complicating jurisdictional coordination. Even when perpetrators are traced, police are overburdened with caseloads, and small-scale frauds (e.g., ₹5,000–₹50,000) are often deprioritized due to resource constraints.
As a result, many e-fraudsters escape prosecution, leaving victims without recourse. The BNSS's emphasis on technology-driven investigations—such as digital evidence collection and inter-state police coordination—aims to address these gaps, but implementation remains a challenge.
Bharatiya Sakshya Adhiniyam: Admissibility of Digital Evidence
The Bharatiya Sakshya Adhiniyam modernizes the rules of evidence, replacing the Indian Evidence Act. It explicitly recognizes electronic records as primary evidence (Section 63), aligning with Section 65B of the IT Act, which governs the admissibility of electronic evidence in court. This is critical for prosecuting online frauds, where evidence often includes screenshots, transaction logs, or metadata from emails and apps. The law also allows for expert testimony on digital forensics, enabling courts to better evaluate complex cybercrime cases.
By ensuring that digital evidence is admissible with proper certification, the Bharatiya Sakshya Adhiniyam bridges a critical gap in the judicial process. However, its success depends on police and judicial training to handle electronic evidence correctly, as well as infrastructure to preserve and analyze digital records securely.
Interplay with the IT Act, 2000
The Information Technology Act, 2000, remains the backbone of India's cybercrime legislation, addressing offences like hacking (Section 66), data theft (Section 43), and online fraud (Sections 66C and 66D). The BNS, BNSS, and Bharatiya Sakshya Adhiniyam complement the IT Act by providing a broader criminal justice framework. For instance:
• The BNS expands the scope of offences like cheating and forgery to include digital contexts, reinforcing IT Act provisions.
• The BNSS streamlines cybercrime investigations, aligning with the IT Act's emphasis on swift reporting and data preservation.
• The Bharatiya Sakshya Adhiniyam ensures that electronic evidence is admissible, supporting IT Act cases that rely heavily on digital records.
This interplay creates a cohesive legal ecosystem to combat online frauds, but practical challenges—such as cross-jurisdictional issues and low prosecution rates—limit its impact.
The Challenge of Small-Scale Frauds and Impunity
One of the most pressing issues in tackling online frauds is the prevalence of small-scale scams, often involving amounts too low to warrant formal complaints. Fraudsters exploit this by targeting multiple victims for small sums (e.g., ₹2,000–₹10,000), knowing that victims are unlikely to pursue legal action due to the time, cost, and effort involved. These fraudsters, often operating from different states or countries, use techniques like phishing links, fake OTPs, or social engineering to defraud victims remotely. The anonymity of the internet, combined with the low priority given to such cases, allows e-fraudsters to operate with near impunity.
Police face significant obstacles in these cases. Tracking perpetrators requires advanced cyber forensic tools and inter-state coordination, which are often resource-intensive. Even when fraudsters are identified, the lack of dedicated cybercrime units in many districts and the backlog of cases discourage thorough pursuit. Consequently, many cases are closed prematurely, leaving victims without justice and emboldening fraudsters to continue their schemes.
Awareness Campaigns: A Step Forward
Recognizing the scale of online frauds, the Reserve Bank of India (RBI), Government of India (GoI), and Indian Computer Emergency Response Team (CERT-In) have launched awareness campaigns to educate citizens. Initiatives like the RBI's "Be Aware, Be Secure" campaign and CERT-In's cybersecurity advisories urge users to avoid sharing OTPs, clicking suspicious links, or disclosing financial details. The GoI's National Cyber Crime Reporting Portal (cybercrime.gov.in) also enables victims to report frauds quickly, streamlining the complaint process.
While these efforts are commendable, they remain insufficient to curb the growing tide of e-frauds. Public awareness alone cannot address systemic issues like understaffed cybercrime units, inadequate forensic infrastructure, or the low conviction rates for cyber offences. A more robust enforcement mechanism, supported by the BNS, BNSS, and Bharatiya Sakshya Adhiniyam, is essential.
The Way Forward: Strengthening Enforcement and Awareness
To effectively combat online frauds, India must address both legal and operational gaps:
1. Capacity Building: Equip police with advanced cyber forensic tools and training to track and trace fraudsters efficiently. Dedicated cybercrime cells in every district could alleviate the burden on general police forces.
2. Inter-State Coordination: Strengthen mechanisms under the BNSS for seamless collaboration between state police forces, ensuring that cross-jurisdictional cases are pursued diligently.
3. Judicial Reforms: Fast-track cybercrime cases through specialized courts and train judges in digital evidence handling to improve conviction rates.
4. Threshold for Complaints: Lower the monetary threshold for registering cybercrime complaints, ensuring that small-scale frauds are investigated seriously.
5. Public-Private Partnerships: Collaborate with banks, payment platforms, and tech companies to implement real-time fraud detection systems and reimburse victims promptly.
6. By leveraging the BNS, BNSS, and Bharatiya Sakshya Adhiniyam alongside the IT Act, India can create a formidable framework to deter e-fraudsters and protect citizens. However, this requires sustained investment in enforcement and public education to translate legal provisions into tangible outcomes.
Conclusion
The Bharatiya Nyaya Sanhita, Bharatiya Nagarik Suraksha Sanhita, and Bharatiya Sakshya Adhiniyam mark a significant step toward modernizing India's criminal justice system to address online frauds. Their interplay with the Information Technology Act, 2000, strengthens the legal framework for defining, investigating, and prosecuting cybercrimes. Yet, the challenges of tracking cross-jurisdictional fraudsters, pursuing small-scale scams, and overcoming police overburden remain formidable. While RBI, GoI, and CERT-In's awareness campaigns are vital, they must be complemented by robust enforcement and systemic reforms. At V-Corps Law Firm, we are committed to guiding victims of online frauds and advocating for stronger cybercrime laws to ensure justice in the digital age.
For assistance with cybercrime complaints or legal advice, contact V-Corps Law Firm at vcorps16@gail.com.