A Turning Point in Digital Policing and Due Process
In January 2025, the Supreme Court of India delivered a landmark ruling in Satender Kumar Antil v. Central Bureau of Investigation (2025 INSC 909), declaring that notices issued by police under Section 35 of the Bharatiya Nagarik Suraksha Sanhita (BNSS) — the successor provision to Section 41A of the Code of Criminal Procedure (CrPC) — cannot be served via WhatsApp, email, SMS, or any electronic means. The Court’s reasoning was simple yet profound: personal liberty is too fundamental to be subjected to procedural shortcuts.
This judgment, though rooted in the specifics of one case, carries wide-ranging implications for policing, due process, and the interface between law and technology.
The case stemmed from a petition filed by Satender Kumar Antil, who challenged the issuance of notices by investigating agencies via WhatsApp messages and emails. Under Section 35 BNSS (and previously Section 41A CrPC), police can issue a notice of appearance to individuals suspected of certain offences instead of immediately arresting them.
Such notices are not mere formality — they are the first step in ensuring a person is aware of accusations and has the opportunity to cooperate with an investigation without the trauma of custodial detention.
However, in recent years, investigating agencies increasingly relied on WhatsApp — sending notices as messages, screenshots, or PDFs — assuming this digital approach was faster, easier, and acceptable. The problem? BNSS never authorised this mode.
The Supreme Court categorically ruled that WhatsApp messages, emails, and other forms of electronic service are not recognized under the BNSS for serving notices. Justices emphasized that BNSS provisions such as Sections 64(2), 71, and 530 explicitly refer to certain electronic communications, but none authorise their use for investigative notices. The omission was deemed deliberate to protect due process.
The judgment relied on previous rulings, including Arnesh Kumar v. State of Bihar (2014), which underlined safeguards against arbitrary arrest, and Rakesh Kumar v. Vijayanta Arya (Delhi High Court), which had similarly questioned electronic service of notices. The Court reiterated that due process cannot be compromised in the name of convenience.
The Court listed several practical and constitutional concerns about electronic service: messages can be deleted or ignored, delivery is not guaranteed, and wrongful arrests could follow for notices never actually received.
The Supreme Court issued nationwide directions: States and Union Territories must prohibit WhatsApp or electronic service for Section 35 notices; High Courts must monitor compliance and ensure agencies follow proper service methods.
For the police, this ruling means WhatsApp screenshots of notices and casual emails will no longer suffice. Officers must serve notices properly and record acknowledgment.
Lawyers and civil liberties groups welcomed the judgment as a victory for due process. Some experts noted that the decision is not anti-technology — it simply pauses digital notices until secure, verifiable systems are legally created.
The Court noted that Parliament can amend the BNSS to create secure digital notice systems in the future, but until then, WhatsApp and email remain off-limits for Section 35 notices.
The Satender Kumar Antil v. CBI judgment is more than a procedural ruling — it’s a statement of principle. The Court made it clear: Due process is not negotiable. Liberty is not a technicality. WhatsApp might be fast, but justice cannot rely on blue ticks.
Sources