ABSTRACT
TThe emergence of "digital arrest" in India signifies a dangerous evolution of cybercrime wherein perpetrators impersonate law enforcement officials via phone calls or video communications, coercing victims by alleging their involvement in serious offenses such as money laundering or narcotics trafficking, and demanding compliance under the threat of fictitious online judicial proceedings. Unlike traditional arrests governed by the Code of Criminal Procedure, 1973 and now the Bharatiya Nagarik Suraksha Sanhita, 2023—where arrest entails physical custody authorized by legal authority—digital arrests involve psychological manipulation, restriction of physical mobility through surveillance, and extortion via digital transactions, often without the victim’s realization of the illegality involved. While the Information Technology Act, 2000 (particularly Section 66D) criminalizes impersonation through electronic means, and the Bharatiya Nyaya Sanhita, 2023 provides enhanced tools for addressing cyber fraud, Indian law currently lacks a specific statutory framework explicitly addressing the unique modus operandi of digital arrests. Despite advancements in AI-based surveillance and amendments that integrate digital evidence into criminal trials, the absence of direct recognition of such tactics in substantive law poses enforcement and redressal challenges. Consequently, the phenomenon underscores a pressing need for doctrinal clarity, regulatory reform, and robust privacy safeguards, particularly in light of the constitutional guarantees under Article 21 and the jurisprudence established in K.S. Puttaswamy v. Union of India, which mandates a proportionality-based approach in state action involving surveillance and digital coercion.
Keywords- Digital Arrest, Cyber Crime, Cyber Fraud, Privacy.
INTRODUCTION
India has seen a sudden increase in internet use and digital services, leading to a spike in digital crimes. Recently, Prime Minister Narendra Modi addressed the country in his 'Mann Ki Baat' and expressed worry against the deception of 'digital arrest.' He presented an audio-visual film depicting a guy in a police outfit soliciting the victim's Aadhaar number to prevent the blocking of his cell phone. In contrast to conventional arrests, digital arrests often restrict an individual's access to digital assets and constrain physical mobility via video conversations.
The term digital arrest describes a cybercriminal strategy wherein offenders utilize messages, phone calls, or video calls to impersonate law enforcement or investigative bodies. By employing deception and threats of imminent digital detention, they effectively manipulate individuals into compliance.Cybercriminals assert that the individual or their relatives are implicated in criminal activities, including drug trafficking and money laundering, or that their Aadhaar card, SIM card, or bank account is associated with illicit activities, resulting in arrests conducted via video calls and occasionally simulating an online trial for such offences in court. They thereafter compel the victim to stay restricted to the premises, directing them to activate the camera on their laptop or mobile phone. This is executed to induce fear, compelling them to send funds via internet transactions for their liberation.
RESEARCH PROBLEM
The rise of cybercrime has led to increased reliance on digital policing and automated enforcement mechanisms, resulting in the emergence of digital arrests—where law enforcement agencies use AI, machine learning, and big data analytics to identify, track, and apprehend suspects in cyber-related offenses. While digital arrests enhance efficiency in tackling cybercrime, they present significant legal and ethical challenges, particularly regarding due process, privacy rights, and the potential for wrongful accusations due to algorithmic biases.
Young adults, who form a significant portion of the digital population, are particularly vulnerable to such automated enforcement. Many lack a clear understanding of cybersecurity laws, making them susceptible to inadvertent infractions. Additionally, AI-driven systems often function with minimal human oversight, leading to concerns over accountability, transparency, and fairness. The absence of comprehensive legal safeguards governing digital arrests raises concerns about the legitimacy and admissibility of AI-generated evidence in judicial proceedings.This study seeks to analyze the legal, ethical, and societal implications of digital arrests, focusing on their impact on young adults involved in cybercrime cases. It aims to evaluate existing legal frameworks, identify gaps, and propose necessary reforms to ensure a balance between technological efficiency and fundamental rights.
ARREST: DEFINITION, LEGAL FRAMEWORK, AND RECENT DEVELOPMENTS
An arrest is the act of taking a person into custody by legal authority, thereby depriving them of their personal liberty. This action is undertaken to ensure the individual's presence during legal proceedings, prevent potential offenses, or facilitate investigations. Despite its fundamental role in the criminal justice system, Indian statutes such as the Indian Penal Code (IPC), 1860, and the Code of Criminal Procedure (CrPC), 1973, do not explicitly define "arrest." Instead, they delineate the circumstances and procedures under which arrests may occur.
The CrPC, prior to its recent overhaul, governed arrest procedures through Sections 41 to 60. Section 41 empowered police officers to arrest individuals without a warrant under specific conditions, such as witnessing a cognizable offense or possessing credible information of one's involvement in such an offense. Section 42 addressed situations where a person commits a non-cognizable offense and refuses to provide their identity, allowing for arrest to ascertain their details. Section 43 permitted private individuals to arrest someone committing a non-bailable offense in their presence, mandating the immediate handover of the apprehended person to law enforcement authorities. Section 44 authorized magistrates to arrest individuals within their jurisdiction under certain circumstances. These provisions aimed to balance individual liberties with the necessity of maintaining public order and ensuring justice.
In 2023, India introduced the Bharatiya Nagarik Suraksha Sanhita (BNSS), replacing the CrPC to modernize and enhance the efficiency of the criminal justice system. The BNSS retains and refines many provisions related to arrest, emphasizing transparency, accountability, and the protection of individual rights. Sections 72 to 83 of the BNSS detail arrest procedures, incorporating technological advancements and addressing contemporary challenges in law enforcement. For instance, the BNSS outlines the use of electronic records and digital communication in the arrest process, reflecting the evolving nature of crime and investigation in the digital age.
A critical aspect of both the CrPC and the BNSS is the safeguarding of constitutional rights during the arrest process. The Constitution of India, under Article 22, provides specific protections to individuals against arbitrary arrest and detention. These include the right to be informed of the grounds of arrest, the right to consult and be defended by a legal practitioner of one's choice, and the obligation to be presented before a magistrate within 24 hours of arrest. The BNSS reinforces these constitutional mandates, ensuring that arrest procedures do not infringe upon fundamental rights.
DIGITAL ARRESTS IN INDIA: TRACING THE PAST, ANALYZING THE PRESENT, AND ENVISIONING THE FUTURE
1. History of Digital Arrest in India
The concept of arrest in India has roots in colonial-era legislation, with the Code of Criminal Procedure, 1898 and the Indian Penal Code, 1860 defining the conditions for detention. These statutes primarily involved physical restraint, ensuring judicial oversight and due process compliance. However, the advent of AI-driven surveillance has led to the emergence of "digital arrests," altering the conventional understanding of detention and law enforcement in the modern digital landscape.
The Code of Criminal Procedure, 1973 (CrPC) in India allows police officers to arrest individuals without a warrant under certain conditions, such as reasonable suspicion of a cognizable offense. Section 46 outlines the procedure for arrest, emphasizing the necessity of physical custody. Section 50 mandates that arrested individuals must be informed of the grounds for arrest and their right to bail in bailable offenses. Section 46(4) prohibits arrests after sunset unless sanctioned by a magistrate, protecting women's rights. In exceptional circumstances, no woman shall be arrested after sunset and before sunrise. If such circumstances exist, prior permission from a first-class Judicial Magistrate is required, and the arrest must be conducted by a female police officer. The Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) maintains this safeguard in Section 43(5), emphasizing women's rights during arrest procedures. Section 43(1) presumes a woman's submission to custody upon oral intimation of arrest and mandates that the arresting officer shall not touch the woman's person during the arrest.
The Information Technology Act, 2000, and the Indian Evidence Act, 1872 have been amended to incorporate digital records as admissible evidence in criminal proceedings. The Bharatiya Nyaya Sanhita, 2023 (BNS) and Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) have introduced AI-driven surveillance and digital monitoring as essential tools in law enforcement. AI-driven facial recognition, predictive policing, and digital footprint analysis are now used to identify offenders before arrests are formally executed. BNS Section 113, replacing Section 41 of the IPC, enhances police powers against cybercriminals, including those involved in financial frauds, identity theft, and online exploitation. BNSS Section 35, replacing CrPC Section 46, now recognizes AI-enabled surveillance as a lawful mechanism to detect and prevent crimes, legitimizing digital arrests. The incorporation of AI into crime prevention strategies aligns with global law enforcement trends, where digital evidence and automated policing have become integral to criminal investigations.
The evolution of digital arrests in India is closely linked to the country's legislative and technological advancements aimed at addressing cybercrime. The foundation was laid with the enactment of the Information Technology (IT) Act in 2000, which provided a legal framework to address offenses related to electronic commerce and cyber activities. This Act criminalized unauthorized access, data breaches, and introduced penalties for various cyber offenses. As technology evolved, so did the nature and complexity of cybercrimes, necessitating amendments to existing laws. The IT Act underwent significant amendments in 2008 to address emerging challenges such as identity theft, phishing, and cyber terrorism. These amendments expanded the scope of the Act and introduced stricter penalties for cyber offenses. Despite these legislative measures, the rapid proliferation of digital technologies and the internet led to an increase in cybercrimes, highlighting the need for more robust legal frameworks and enforcement mechanisms. The judiciary also played a pivotal role in shaping the legal landscape for digital arrests. In the landmark case of K.S. Puttaswamy vs Union of India (2017), the Supreme Court recognized the right to privacy as a fundamental right under Article 21 of the Constitution. This judgment underscored the necessity for a balanced approach that safeguards individual privacy while enabling law enforcement agencies to combat cybercrimes effectively. However, the absence of comprehensive legislation specifically addressing digital arrests and the use of advanced surveillance technologies remained a significant gap in India's legal framework. This gap became more pronounced with the advent of artificial intelligence (AI) and other emerging technologies, which introduced new dimensions to both the perpetration and prevention of cybercrimes. Consequently, the historical trajectory of digital arrests in India reflects a continuous effort to adapt to the dynamic cyber landscape, balancing the imperatives of security and individual rights.
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