Digital Strip Searches and Constitutional Silences: Examining Data Privacy Gaps and Investigative Modernization under the Bharatiya Nagarik Suraksha Sanhita, 2023

The Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS), in its intent to bring about a paradigm shift in the criminal justice system in India by incorporating the advances of technology in the investigative process, has led to an unprecedented constitutional conundrum in the context of the seizure of electronic items, which is now coming to be defined as the 'digital strip search.' While the geography of the human body is limited in terms of spatial dimensions, the seizure of an individual’s smartphone allows law enforcement agencies access to the entire digital persona of an individual, which encompasses financial details, health records, biometric data, and intimate communications. The present paper contends that the indiscriminate seizure of electronic items under the BNSS is in direct contravention of the principles of 'Purpose Limitation' and 'Data Minimization' as defined in the judgment in K.S. Puttaswamy v. Union of India, which essentially results in the revival of the 'general warrant' in the digital age. The present paper undertakes an in-depth analysis of the provisions of Section 94 of the BNSS in the context of Section 185 of the same act in relation to the split in judicial opinions on the 'Crime Control' model versus the 'Due Process' model while also touching upon the implications of the provisions of the BNSS on victimology and privilege. The analysis is then taken to its logical conclusion by proposing the 'Digital Evidence Code.'