The Criminal Procedure (Identification) Bill, 2022 was introduced in the Lok Sabha on March 28, 2022 by the union home minister, Amit Shah. It was passed by the Lok Sabha and the Rajya Sabha on April 4 and April 6, 2022, respectively. It received the presidential assent on April 18, 2022 to become an act. The act is directed towards repealing the Identification of Prisoners Act, 1920. The scope of the 1920 Act was limited to recording measurements including finger impressions and footprint impressions of certain convicts and non-convict persons. The 2022 Act widens the scope and type of data that may be collected, persons from whom such data may be collected, and the authority that may authorise such collection.
As per the government, the objective of the Criminal Procedure (Identification) Act, 2022, is to assist consolidation of evidence and help to increase the conviction rates in the country. According to the Objects and reasons accompanying the bill’s introduction, the bill seeks — (i) to define ‘‘measurements’’ to include finger-impressions, palm-print and foot-print impressions, photographs, iris and retina scan, physical, biological samples and their analysis, etc.; (ii) to empower the National Crime Records Bureau of India to collect, store and preserve the record of measurements and for sharing, dissemination, destruction and disposal of records; (iii) to empower a Magistrate to direct any person to give measurements; (iv) to empower police or prison officer to take measurements of any person who resists or refuses to give measurements.
Changing times require investigation methods to be upgraded as the advances in technology have facilitated other measurements to be used for criminal investigation. The DNA Technology (Use and Application) Regulation Bill, 2019 (pending in Lok Sabha) seeks to provide a framework for using DNA technology for crime investigation. In 1980, the Law Commission of India, while examining the 1920 Act, observed the need to revise it in the wake of modern trends in criminal investigation. In March 2003, the Expert Committee on Reforms of the Criminal Justice System, under Dr Justice V. S. Malimath, recommended amending the 1920 Act to empower the magistrate to authorise the collection of data such as blood samples for DNA, hair, saliva, and semen.
Provisions of the Act
Data The 2022 act expands the ambit of data to be collected to include physical impressions, such as palm-print impressions, iris and retina scans; behavioural attributes such as signature and handwriting; and other physical and biological samples such as blood, semen, hair samples and swabs, and their analysis, or any other examination mentioned in the Code of Criminal Procedure (CrPC), 1973.
The Identification of Prisoners Act, 1920, was quite restricted in terms of obtaining information of convicted persons and certain category of arrested and non-convicted persons. It was limited to capturing of finger impression, foot-print impressions, and photographs of such persons on the order of a magistrate.
Persons whose data may be collected The new act enhances the ambit of persons whose data can be obtained by including all convicts, arrested persons, and persons detained under any preventive detention law. Arrested persons will not be obliged to give their biological samples unless they have committed an offence against a woman or a child, or an offence punishable with a minimum of seven years of imprisonment. Under the 1920 act, the following persons were required to give photographs and specified details: persons convicted of certain offences (such as offences punishable with a minimum of one year of rigorous imprisonment), persons ordered to give security for good behaviour or maintaining peace under the Code of Criminal Procedure, 1973 (CrPC), and persons arrested in connection with an offence punishable with at least one year of rigorous imprisonment
Retention of data As per the 2022 act, the details collected will be stored in digital or electronic form in a central database for 75 years from the date of collection. The act also allows deletion of record in case of certain categories of people, including those who have not been previously convicted, and those who are released without trial, discharged, or acquitted by the court, after using all legal remedies. But a court or a magistrate may require the retention of details of such persons.
Resistance to divulge details Under both the 1920 act and the 2022 act, refusal to share data is regarded as an offence amounting to forbidding a public servant from performing his duty. Resistance or refusal to give details is an offence under the Indian Penal Code, 1860, and allows police officers or prison officers to collect details in the manner prescribed under rules made by the state government or the central government.
Persons authorised to collect details The new act provides for the collection of details about specified persons by either a prison officer (not below the rank of head warder), or a police officer (in charge of a police station, or at least at the rank of a head constable). Under the 1920 act, details could be collected by police officer in charge of a police station or of conducting the investigation under the CrPC, or at least holding the rank of a sub inspector.
Powers of magistrate As per the 2022 act, a magistrate may ask a person to give details for the purpose of an investigation or proceeding under the CrPC. The magistrate may be a metropolitan magistrate, a judicial magistrate of the first class, or an executive magistrate.
Role of the National Crime Records Bureau (NCRB) Under the 2022 act, the NCRB is empowered to collect the details about the persons covered under the act from state governments, union territory administrations, or other law enforcement agencies. Other functions entrusted to the NCRB under the act involve storing and destroying the details about specified persons at the national level, processing the details with relevant criminal records, and providing the details to law enforcement agencies. State governments and union territory administrations can also direct agencies to collect, preserve, and share details about specified persons in their respective jurisdictions.
Rule-making power extended to the central government: The 1920 act conferred rule-making power only in the state government. The new act provides this power to the central government as well. The rules to be made on various matters include the manner of collecting details, and the manner of collection, storage, preservation, destruction, dissemination, and disposal of details by NCRB.
Concerns over the Act
Critics of the Criminal Procedure (Identification) Act, 2022 have raised objections that the act is unconstitutional and that it is subject misuse.
The Criminal Procedure (Identification) Act, 2022 gives rise to concerns related to the right of privacy and equality. The act authorises the collection of specified information about individuals for the investigation of crime. Such information is a part of the personal data of individuals and thus comes under the right to privacy of individuals. In 2017, the Supreme Court recognised the right to privacy of individuals as a fundamental right and laid out principles that should govern any law that restricts this right. These include public purpose, a rational nexus of the law with such purpose, and achievement of this purpose in the least intrusive way. In other words, the infringement of privacy must be necessary for and proportionate to that purpose.
The act may not fulfil these parameters or conditions laid out under Article 14 that require a law to be fair and reasonable. It may also fail to uphold equality under the law. A person is not under obligation to give biological samples unless he is arrested for an offence against a woman or a child. The exception is rather broad: theft, after all, may be committed by a man or a woman and the victim may be a man, as pointed out by a critic. The provision in the act would be violative of equality before the law, as it would entail different rules for victims of stealing on the basis of gender.
The act enhances the power of police and prison officials but keeps the powers of judiciary unchanged. The problem is that the police has a tendency to abuse its powers.
The act widens the range of persons whose data may be collected to include persons arrested for any offence. Even a person who has committed a minor offence would have their personal data collected and preserved. This is in contradiction of the observation of the Law Commission (1980) that the 1920 Act is based on the principle that, in the case of a less serious offence, the power to take coercive measures should be limited.
Moreover, the data collected is not required to have any relationship with the evidence needed for the case. A central database is to store the data which can be accessed widely. The data is stored practically for life – 75 years. The provision allowing the retention and storage of data and its potential use for the investigation of offences in the future may also not meet the necessity and proportionality standards. It is also against the principles of data minimisation and storage limitation, established in the Puttaswamy and Aadhaar judgement. There is a fear that surveillance by the State could be encouraged and that data may not be safe, especially in the light of the absence of a data protection law in India and the frequent incidents of data breaches.
While broadening the list of details that can be collected, the act does not restrict the measurements to those required for a particular investigation. It also does not specifically prohibit taking DNA samples. However, as per Section 53 of the Code of Criminal Procedure, 1973, collection of biological samples and their analysis may be done only if “there are reasonable grounds for believing that such examination will afford evidence as to the commission of an offence”.
The act provides that the data collected should be destroyed if the person concerned is acquitted or discharged. However, the slow pace at which the cases proceed in India both at the investigative and the courts’ levels, and with so many appeals allowed, the data could well remain with the NCRB for years. Which is rather unfair to a person if he/she has been wrongly implicated.
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