THE CRIMINAL PROCEDURE (IDENTIFICATION) BILL, 2022- THE OBJECTIVES AND CONCERNS

THE CONTEXT: The Criminal Procedure (Identification) Bill, 2022, was enacted by Parliament on April 6 to replace the Identification of Prisoners Act of 1920. The new law empowers police and investigating agencies to acquire and keep personally-identifying information on individuals, such as bio-metrics and biological samples. The Bill, which was introduced on March 28, was quickly passed by both houses. However, various segments of society have expressed worry about the implications for privacy rights. This article examines the issue in detail.

Note: on 18^th April 2022 the President has given assent to the Bill.

KEY FEATURES OF THE BILL

• The Bill expands:
• the type of data that may be collected,
• the persons from whom such data may be collected, and
• the authority that may authorize such collection.
• It also provides for the data to be stored in a central database. Under both the 1920 Act and the 2022 Bill, resistance or refusal to give data will be considered an offence of obstructing a public servant from doing his duty. Table 1 compares provisions of the 2022 Bill with the 1920 Act.
• The National Crime Records Bureau (NCRB) will be the central agency to maintain the records. It will share the data with law enforcement agencies. Further, states/UTs may notify agencies to collect, preserve, and share data in their respective jurisdictions.
• The data collected will be retained in digital or electronic form for 75 years.   Records will be destroyed in case of acquitted persons after all appeals or released without trial.   However, in such cases, a Court or Magistrate may direct the retention of details after recording reasons in writing.

COMPARISON OF KEY PROVISIONS OF THE 1920 ACT AND THE 2022 BILL

WHAT IS THE NEED FOR THE BILL?

CAN YOU BE COMPELLED TO GIVE YOUR MEASUREMENTS?

The scope of consent is one of the most criticized aspects of the Bill. Under Clause 3 of the Bill, a person may be required to give his measurements. The persons discussed under the said clause may be compelled to give their measurements. The proviso to Clause 3 clearly provides that a person may not be obliged to give biological samples until and unless he has been arrested or convicted for an offence against a woman or child or an offence punishable with more than seven years of imprisonment. Therefore, in simple terms, any person who is arrested for an offence that does not involve women or children and is punishable with imprisonment of less than 7 years, then such person can be compelled to provide all other measurements, excluding biological measurements. The scheme of the Bill is such that a person may be compelled to give his measurements. As per Clause 6 (2) of the Bill, in case a person refuses or resists providing the measurements, then he would be deemed to commit an offence under Section 186 IPC.

 WHAT ARE THE ISSUES INVOLVED IN THE BILL?

FAILS THE TEST OF ARTICLE 14:

• The object of the Bill is to use modern technology and make the criminal justice system more effective.
• Only those arrested for offences punishable by 7 years or more, or those arrested for offences against a woman or a child may be compelled to give their biological samples,
• But all arrested persons may be compelled to give measurements other than biological samples.
• This classification bears no rational nexus to making investigations more efficient.
• Moreover, there lies no option of consent with the person; hence it is nothing but manifestly arbitrary.

VIOLATION OF ARTICLE 20(3):

• As per Article 20(3), one cannot be compelled to be a witness against himself.
• A bare reading of the Bill makes it clear that the measurements of the person may be recorded and be used against him at his trial.
• Hence, the provisions of the Bill will be hit by Article 20 (3)

VIOLATION OF ARTICLE 21:

• In order for the Bill to stand the test of judicial review, it must satisfy the fourfold requirement of the doctrine of proportionality laid down in Justice KS Puttaswamy v Union of India^.
• While the Bill has the legitimate aim of improving the investigation, detection, and prevention of crimes, it fails to satisfy the other three requirements, namely, suitability, necessity and balancing.

ABUSE OF POWERS CONFERRED:

• It may be seen that the Bill provides for a police officer or prison officer above the rank of head constable or head warder to collect measurements, which is excessive and may lead to abuse of power and rampant corruption.

TIME PERIOD FOR WHICH THE DATA IS COLLECTED:

• The Bill aims to preserve the records of measurements for a period of 75 years from the date of collection of such samples.
• Hence, it lacks reason and is arbitrary.

AMBIGUOUS DEFINITION:

• The definition of “measurements” is very “ambiguous and nebulous”. Whether brain mapping and narco analysis will be used as part of “biological samples and their analysis” is not spelt out.

CREATION OF A POLICE STATE:

• Opposition MPs have said that they are not opposed to police reforms or modernization of police forces but to certain provisions of the Bill.
• Observing that a head constable can prepare one’s complete identification profile under the new law, they said, whether the government wants to make India a police state”.

NO DATA PROTECTION LAW:

• The law would be introduced without a data protection law, which India so desperately needs and in the absence of such a law, there is the likelihood of its misuse and abuse.

CONSTITUTIONALITY OF COLLECTING BIOLOGICAL SAMPLES OR OTHER MEASUREMENTS FOR FACILITATING INVESTIGATION

The Supreme Court of India held in State of Bombay vs Kathi Kalu in 1961 that the expression “to be a witness” under Articles 20(3) of the Constitution does not include a person in custody giving his specimen handwriting or signature or impression of his thumb, finger, palm, or foot to the investigating officer. Similarly, it has been held in a slew of cases that taking a blood sample for a DNA test, a hair sample, or a voice sample will not amount to compelling an accused to become a witness against himself. This is because such samples are harmless and do not convey information within the accused’s personal knowledge. As a result, the legality of taking biological samples or other measurements to aid investigation has long been established. The only exceptions are scientific techniques, namely narcoanalysis, polygraphy and brain fingerprinting which the Supreme Court in Selvi vs State of Karnataka (2010) held to be testimonial compulsions (if conducted without consent), and thus prohibited under Article 20(3) of the Constitution.

WHAT IS THE WAY FORWARD?

REMOVING THE AMBIGUITIES:

• Under what circumstances can a cop be allowed or denied access to this database?
• What are the permissible uses of this database?
• What punishment happens if a police officer uses this database in violation of extant law?
• All these issues need clarity, and the government must provide it through rules.

IMPROVE INVESTIGATION:

• For a civilized and advanced society to be developed and maintained, a civilized and sophisticated police force is quite essential.
• Therefore, emphasis should be made in this on capacity building, including experts in forensics at the police station level itself.

PROTECTION FOR JUVENILES:

• Though the Act does not explicitly bar taking measurements of juveniles, the provisions of the (Special Act) Juvenile Justice Act, 2015 regarding the destruction of records of conviction under the Act shall apply.
• However, it is desirable to include a provision for juveniles in the Act to
• provide clarity and eliminate any uncertainties

PREVENT POLITICAL WITCH-HUNT:

• The law should not become a tool for political “witch-hunt”.
• DNA profiling also should be used purely for serious crimes and for counter-terrorism purposes only.

REASONABLE PERIOD OF DATA STORAGE:

• The storage time for adult measurements could have been conveniently lowered by ten years, as the likelihood of any person committing a crime after the age of 80 is negligible.
• According to the National Crime Records Bureau (NCRB Crime )’s in India–2020 figures, the number of arrested people above the age of 60 is less than 1.5 per cent.

JUDICIAL DETERMINATION:

• The Act has been challenged in Delhi High Court, and an early judicial pronouncement can address many of the contentious issues.

DATA PROTECTION LAW:

• Early enactment of a comprehensive data protection law is required.

THE CONCLUSION: No society, including ours, is flawless. Our social consciousness is riddled with deeply entrenched biases and preconceptions. Our police force is a product of its social environment, and as a result, it is far from ideal. That does not preclude us from providing it with the necessary powers and instruments. There is an undeniable necessity to strike a balance between respecting an individual’s privacy while also providing law enforcement with the tools they require to keep us safe.

QUESTIONS:

1. Critically examine the provisions of the Criminal Procedure (Identification) Act, 2022.
2. 2.” For a civilized and advanced society to be developed and maintained, a civilized and sophisticated police force is quite essential”. Examine the statement in the light of issues surrounding the Criminal Procedure (Identification) Act, 2022.
3. Can we say that right to privacy should be subjected to the right to safety? Argue.

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