Digital Forensics, Informational Privacy and Constitutional Dignity: A Critical Study of Cybercrime Investigative Framework under BNSS and DPDP Act

Abstract

The rapid expansion of cybercrime investigation has brought fundamental changes in the manner in which criminal investigations are used to be conducted in India, especially with increased usage of digital forensic technologies during extraction, preservation, and analysis of electronic devices seized during cybercrime investigations. However, these modern digital forensic technologies help in increasing the technological capabilities of our law enforcement agencies. On the other hand, it also raises several constitutional concerns as well, such as breach of informational privacy, constitutional dignity, procedural fairness, and protection against self-incrimination guaranteed under Article 21 and 20(3) of the Indian Constitution, due to unrestricted extraction of personal information by investigative authorities. Therefore, it can be said that technological upgrades in criminal investigations have expanded faster than constitutional and procedural safeguards. This article attempts to evaluate critically India’s legal and constitutional framework governing digital forensic investigations, with special focus on the investigation stage of cybercrime investigation. This article includes analysis of various constitutional provisions protecting the right to privacy, along with India’s procedural framework regulating investigative data practices, forensic extraction, and state access to personal digital information, such as the Bharatiya Nagarik Suraksha Sanhita 2023 and the Digital Personal Data Protection Act, 2023. This article argues that though India’s legal framework has been updated recently to accommodate electronic investigation within in its criminal procedure, but the absence of comprehensive statutory framework specifically regulating digital forensic governance, forensic laboratories, extraction limitation, electronic device search and seizure practices, protocols for cloning the device, data minimization requirement during cybercrime investigation has substantially impacted the dignity as well as fail to secure informational privacy of the suspect of an alleged offence.