Context

The Bill proposes to collect “measurements” of convicted persons, those who are arrested (or detained under preventive detention laws) or those who have executed bonds promising good behaviour.

Dilution of right against self-incrimination

• The Constitution, under Article 20(3), protects an accused from being compelled to give witness against himself.
• This fundamental right has been diluted over the years.
• In 2005, the Code of Criminal Procedure (CrPC) was amended to allow a magistrate to order any person to give their handwriting samples for the purpose of an investigation or proceeding.
• In 2019, the Supreme Court, in Ritesh Sinha v. State of UP, held that such handwriting samples could include voice samples.
• It relied upon its judgment in the Kathi Kalu Oghad case (1962) that held that giving palm impressions or footprints could not be called self-incriminatory because impressions were unchangeable, except in rare cases”.
• Instead, it held that the Constitution bars the compulsory extraction of a statement — oral or written — from the accused, “which makes the case against the accused person at least probable, considered by itself”.

Provisions in the Bill

• While the databasing of convicted persons is not new, the new piece of legislation allows for taking information, including finger-impressions, palm-print impressions, footprint impressions, photographs, iris and retina scan, physical, biological samples and their analysis, behavioural attributes including signatures, handwriting or any other examination referred to in Sections 53, 53A of the CrPC.
• It also mandates the National Crime Records Bureau to store, preserve and destroy the record of measurements at the national level as well as process and share them with any law enforcement agency.

Issues with the Bill

• Right against self-incrimination is unlikely to apply to technologies in use today.
• Wide scope of under new technologies: The logic that was used in 1962 to interpret what would violate the right against self-incrimination is unlikely to apply to technologies in use today.
• The Bill is vaguely worded and the nature of the processing, sharing, and dissemination of data it entails will most certainly involve the use of new and emerging technologies. 
•  Their application to policing and the criminal justice system has new implications for the right against self-incrimination.
• The compulsory submission of such information could have chilling effects after being subjected to new technologies – in other words, the past of an accused person might be enough to incriminate him.
• Possibility of coercive data collection: The Bill proposes to collect “measurements” of convicted persons, those who are arrested (or detained under preventive detention laws) or those who have executed bonds promising good behaviour.
• Only those arrested for petty offences that are punishable with less than seven years may not be obliged to allow the recording of measurements.
• This rings a warning bell about coercive data collection, especially when seen in the light of the practices used to police oppressed communities.
• For instance, under the Criminal Tribes Act, 1871, many nomadic and semi-nomadic communities were labelled hereditary criminals.
•  Despite the Act being repealed in 1952, these denotified tribal (“Vimukta”) communities continue to be treated as criminals by birth through the “Habitual Offenders” provisions in state-level police regulations that allow local police stations to keep records of such persons residing in their area.
• It condemns a section of the country’s population to several cycles of arrest, bail, and acquittal.
• The new piece of legislation could make the practice of history-sheeting, undertaken when a person is merely alleged of a crime, and not convicted, even more coercive.
• Long storage period and no clear process for destroying information: the “measurements” are to be stored at the national level for 75 years, with no clear procedure outlined for destroying the information.

Conclusion

The right against self-incrimination is at the heart of protection against police excess and torture. Record-keeping as mandated by the Bill violates this right. Parliament must make laws that protect against such blatant attacks on fundamental rights and freedoms, rather than enable them.

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