Context

The Union Minister of State for Home Affairs introduced the Criminal Procedure (Identification) Bill 2022.

Purpose of the introduction of the Bill

• The Bill aims to replace the Identification of Prisoners Act 1920 that has been in need of amendment for several decades.
• The criticism and the need for amendment was predominantly in respect of the limited definition of ‘measurements’ as under that Act.
• Back in the 1980s, the Law Commission of India (in its 87th Report) and the Supreme Court of India in a judgment titled State of U.P. vs Ram Babu Misra had nearly simultaneously suggested the need to amend the statute.

What are the issues with the provisions in the Bill?

1] Definition of ‘measurement’ includes analysis of the data

• The definition of measurements is not restricted to taking measurements, but also their “analysis”.
• The definition now states “iris and retina scan, physical, biological samples and their analysis, behavio[u]ral attributes including signatures….”
• It goes beyond the scope of a law that is only designed for taking measurements and could result in indirectly conferring legislative backing for techniques that may involve the collection of data from other sources(For instance, using facial recognition).
• At present there are extensive facial recognition technology programmes for “smart policing” that are deployed all across the country.
• Such experimental technologies cause mass surveillance and are prone to bias, impacting the fundamental rights of the most vulnerable in India.

2] Power of the police and prison officials widened

• The existing law permits data capture by police and prison officers either from persons convicted or persons arrested for commission of offences punishable with a minimum of one year’s imprisonment.
• Parallel powers are granted to judges, who can order any person to give measurements where it is in aid of investigation.
• While the judicial power is left undisturbed, it is the powers of the police and prison officials that are being widened.
• The law removes the existing — albeit minimal — limitation on persons whose measurements could be taken.
• It is poised to be expanded to all persons who are placed under arrest in a case.
• Here, the proposed Bill also contains muddied language stating that a person, “may not be obliged to allow taking of his biological samples”.

3] Storage and retention of data for a long period

• The National Crime Records Bureau (NCRB) shall for a period of 75 years from the date of collection maintain a digital record, “in the interest of prevention, detection, investigation and prosecution of any offense”.
• The provision permits the NCRB to, “share and disseminate such records with any law enforcement agency, in such manner as may be prescribed”.
• The NCRB already operates a centralised database, namely the Crime and Criminal Tracking Network & Systems (CCTNS), without any clear legislative framework.
• The existence of such legislative power with a technical framework may permit multiple mirror copies and parallel databases of the “measurements” being stored with law enforcement, beyond a State Police department which will be prosecuting the crime and the NCRB which will store all records centrally.
• For instance, in response to a Standing Committee of Parliament on police modernisation, Rajasthan has stated that it maintains a ‘RajCop Application’ that integrates with “analytics capabilities in real-time with multiple data sources (inter-department and intra-department)”.
• Similarly, Punjab has said that the “PAIS (Punjab Artificial Intelligence System) App uses machine learning, deep learning, visual search, and face recognition for the identification of criminals to assist police personnel.
• Hence, multiple copies of “measurements” will be used by State government policing departments for various purposes and with experimental technologies.
• This also takes away the benefit of deletion which occurs on acquittal and will suffer from weak enforcement due to the absence of a data protection law.
•  The end result is a sprawling database in which innocent persons are treated as persons of interest for most of their natural lives.

Conclusion

To protect individual autonomy and fulfil our constitutional promises, the Supreme Court of India pronounced the Justice K.S. Puttaswamy judgment, reaffirming its status as a fundamental right. The responsibility to protect it falls to each organ of the government, including the legislature and the union executive.

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