The Criminal Procedure (Identification) Bill, 2022 was introduced in Lok Sabha on March 28, 2022 and it has been passed by the Indian Parliament on April 6, 2022.
The Criminal Procedure (Identification) Act, 2022 (hereinafter, ‘Act’) aims to repeal the Colonial law i.e., Identification of Prisoners Act, 1920 (hereinafter, ‘1920 Act’) which allows the law enforcement agencies to collect personal identifiable information of persons including convicts and arrested persons for the purpose of criminal investigation.
Technological advancements have introduced novel measurements deployed for criminal investigation. In 1980, when the Law Commission of India examined the 1920 Act, it remarked that it needed to be revised to keep up with modern advancements in criminal investigation. In 2003, the Expert Committee on Criminal Justice System Reforms, chaired by Dr. Justice V. S. Malimath suggested changes in the 1920 Act to allow the Magistrate to authorise the collection of data inclusive of blood samples for DNA, hair, saliva, and sperm.
Thus, to form a comprehensive framework, the Act was brought into force. The definition of “measurements” as provided in the Act, includes biological and physical samples, finger imprints, palm prints, footprint impressions, iris and retina scan, pictures and their analysis, behavioural attributes including signatures, handwriting or any other examination referred in section 53 or 53A of the Code of Criminal Procedure, 1973.
Key features of the Act
The Act authorises the executive authorities for the collection and storage of biometric and personal data of any person arrested by police, including convicts. Further, the Act broadens the types of data that may be collected, persons from whom such data may be collected, and the authority that may authorise such collection. The Act also provides for the data to be stored and preserved in a central database. Refusal or resistance to collect data will be considered as an offence of impeding a public servant from doing his duty, under section 186 of the Indian Penal Code.
Additionally, the Act allows the Magistrate to order the Law enforcement officials to collect the data in the case of accused as well as convicted persons. In addition to this, Magistrate can also order for the gathering of data from any person detained under any Preventive detention law.
The Act further expands the reach of such information as well as the people who can access it. The Act states that, National Crime Record Bureau (NCRB) will be the central agency to maintain and keep track of the data records. It will share the data with the executive authorities. Furthermore, States/UT’s may notify the law enforcement agencies in their jurisdiction to collect, preserve and, share data.
The collected data will be kept for 75 years in digital or electronic form. If a person is freed without a trial, or discharged or acquitted by the Court after exhausting all legal remedies, all the measurements so taken shall be destroyed. However, in such cases, a Court or Magistrate may direct the retention of data after giving the reasons in writing.
Constitutional Validity of the Act
By virtue of the modifications to the erstwhile Act, it is emphasized that the balance between the rights of an individual and that of the state needs to be maintained in the general interest of the public. However, the Amendment Act of 2022 is not only diametrical to the basic criminal jurisprudence but, also violates number of constitutional rights of an individual with its vague and ambiguous provisions.
Right to bodily autonomy
Bodily autonomy essentially means the “ability to choose”. It is the right of an individual to choose how they want to use their body without any compulsion from someone else. This Act provides for the collection of biological as well as physical data of accused persons, including convicts which directly infringes one’s right to bodily integrity and individual’s autonomy.
The Supreme Court, in Common Cause v. Union of India, ultimately upheld the right of an individual against forceful intrusion into one’s body, keeping intact bodily integrity and autonomy of the individual.
Right against Self-Incrimination
The Act further provides that the refusal to share such data will be considered as an offence under this Act. It infringes an individual’s right against self incrimination under Article 20(3) of the Constitution, which reads as:- “No person accused of any offence shall be compelled to be a witness against himself.” This provision will amount to coercive elicitation of data for the testimonial purpose, which again impinges the right to life and personal liberty guaranteed under Article 21 of the Constitution.
The Supreme Court has held that compulsory neuroscientific tests amount to testimonial compulsion and violates the rule of self- incrimination as a result, and that such tests would have to meet the standard of ‘substantive due process’ for placing restraints on personal liberty. It further held that the main purpose of the right against self- incrimination is to ensure reliable testimony, since involuntary statements mostly turn out to be inaccurate, besides violating a person’s dignity and integrity.
Right against arbitrary and unreasonable state action
The Act further empowers a Magistrate to order for collection of personal data from any person not arrested, to aid in a prevailing investigation which makes it discretionary on the part Magistrate to not provide any reason for the same. This is contrary to Article 14 of the Constitution which gives a person right against arbitrary and unreasonable state action.
This Act endangers the rights of the citizens by making the authoritarian power arbitrary. The case of E.P. Royappa v. State of Tamil Nadu, held the concept of equality as dynamic and ruled that it cannot be confined, cabined and cribbed. The convicted persons must also be given rights by judicial pronouncements as precedence in the framework of legislation.
Right to privacy
Privacy is a fundamental right, which has various aspects of it such as privacy of body, privacy of choice, privacy of space etc. This principle has been evolved by Supreme Court in its number of judgements.
In Maneka Gandhi v. Union of India, the Supreme Court added a new dimension to Article 21, saying that the “right to life or live” includes not only bodily existence but also the right to live with dignity. This bill puts a person’s life on wait, and he will be constantly monitored by the government, which is a significant infringement of privacy.
In this digital era, the data will be stored by the NCRB for 75 years, and can be accessed by various law enforcement agencies. The Act does not provide for a proper mechanism to regulate such vast public data, thus makes everyone vulnerable. The Supreme Court in Justice K.S. Puttaswamy (Retd.) & Anr v. Union of India held that, the right to privacy as a fundamental right under Article 21, stating that measures which are against the privacy right of an individual have to be reasonable and proportionate to be legal. It expressly stated that autonomy over personal decisions, bodily integrity as well as personal information forms a part of this.
The Act further gives the discretion to the Magistrate that if a person who has no previous record of conviction and is released without trial or has been discharged or acquitted by the court, can have their records destroyed, after giving the valid reasons.
Furthermore, in Narayan Dutt Tiwari v. Rohit Shekhar and Anr, the Court stated that no one should be forced to undergo any of the techniques in question under any circumstances, even when it is part of a criminal inquiry. Such actions would be an unjustifiable infringement on an individual’s right to privacy.
The Bill was introduced with an intention to allow the use of modern technologies in capturing and preserving the records of convicts and other persons for the purpose of identification and investigation in criminal cases. However, by granting the State wide powers to conduct physical and biological tests and to maintain such records, the Act has infringed on the Fundamental Rights of the citizens which include Article 14, 19, 20(3) and 21 of the Constitution.