On September 19, the Ministry of Home Affairs (MHA) notified the rules governing The Criminal Procedure (Identification) Act, 2022. The Act was passed in March by the Parliament.

Why in news?

• Until rules are notified, an Act cannot be implemented or come into force.
• The legislation would enable police and central investigating agencies to collect, store and analyse physical and biological samples including retina and iris scan of arrested persons.

What is the Criminal Procedure (Identification) Act, 2022?

Ans. It is about critical measurements of Criminals.

• This act provides legal sanction to law enforcement agencies for taking measurements of convicts and other persons for the purposes of identification and investigation of criminal matters.
• The Minister of Home Affairs has observed that with advancements in forensics, there was a need to recognise more kinds of “measurements” that can be used by law enforcement agencies for investigation.

What is the use of identification details in criminal trials?

• Measurements and photographs for identification have three main purposes:

1. To establish the identity of the culprit against the person being arrested
2. To identify suspected repetition of similar offences by the same person and third
3. To establish a previous conviction

What was the previous Identification of Prisoners Act, 1920 about?

• Even though the police has powers of arrest, mere arrest does not give Police the right to search a person.
• The police requires legal sanction to search the person and collect evidence.
• These legal sanctions are designed so as to maintain a balance between the rights of an individual and the interests of society in prosecution and prevention of offences.
• The Identification of Prisoners Act, 1920 became a necessity when the recording of newer forms of evidence such as fingerprints, footprints and measurements started becoming more accurate and reliable.

What was the need to replace this Act?

Ans. Changing nature of Crime

• Over the years, the need to amend/update the Identification of Prisoners Act, 1920 has been voiced several times.
• In 1980, the 87th Report of the Law Commission of India undertook a review of this legislation and recommended several amendments.
• This was done in the backdrop of the State of UP vs. Ram Babu Misra case, where the Supreme Court had highlighted the need for amending this law.
• The first set of recommendations laid out the need to amend the Act to expand the scope of measurements to include “palm impressions”, “specimen of signature or writing” and “specimen of voice”.
• The second set of recommendations raised the need of allowing measurements to be taken for proceedings other than those under the Code of Criminal Procedure (CrPC).

What are the main highlights and differences in both the legislations?

• Both provide legal sanction: Like the 1920 Law, the new Criminal Procedure (Identification) Act, 2022 provides for legal sanction to law enforcement agencies for the collection of measurements.
• Creating usable database of evidences: The purpose is to create a useable database of these measurements.
• Notifying designated state agencies: At the State level, each State is required to notify an appropriate agency to collect and preserve this database of measurements.
• NCRB at centre stage: At the national level, the National Crime Records Bureau (NCRB) is the designated agency to manage, process, share and disseminate the records collected at the State level.

What are some of the concerns with the present legislation?

• Striking a balance: The new legislation has raised some concerns related to the protection of fundamental rights.
• Unresolved right to Privacy debate: The legislation comes in the backdrop of the right to privacy being recognised as a fundamental right.
• Notion of physical privacy: A fundamental facet of the right to privacy is protection from the invasion of one’s physical privacy.
• Justifying necessity: As per the Puttaswamy judgment, there is a need for the measure to be taken in pursuance of a legitimate aim of the state, be backed by the law and be “necessary and proportionate” to the aim being sought to be achieved.

(1) Various tests behind

• In this case, while the first two tests are satisfied, as:

1. “prevention and investigation of crime” is a legitimate aim of the state
2. “measurements” are being taken under a valid legislation,

• Satisfaction of the third test of “necessity and proportionality” has been challenged on multiple counts.

(2) A probable police state in making

• Analysis and measurement of behavioural attributes have raised concerns that data processing may go beyond recording of core “measurements”.
• That is some of these measurements could be processed for predictive policing.

(3) Includes petty offences

• The current law allows for “measurements” to be taken if a person has been convicted/arrested for any offence, including petty offences.
• The necessity of taking measurements of such persons for investigation of offences is unclear, and such discretion is likely to result in abuse of the law at lower levels.
• This would definitely overburden the systems used for collection and storage of these measurements.

(4) Period of storage of data

• Given that these records will be stored for 75 years from the time of collection, the law has been criticised as being disproportionate.

(5) Surveillance state

• Such collection can also result in mass surveillance, with the database under this law being combined with other databases such as those of the Crime and Criminal Tracking Network and Systems (CCTNS).

(6) Promotes self-incrimination

• Concerns are being raised that the present law violates the right against self-incrimination enshrined in Article 20(3) of the Constitution of India.
• However, this argument is nebulous since the Supreme Court has already settled this point.
• In the State of Bombay vs Kathi Kalu Oghad, the Supreme Court had conclusively held that “non-communicative” evidence i.e. evidence which does not convey information within the personal knowledge of the accused cannot be understood to be leading to self-incrimination.
• Therefore, no challenge lies to the law on this ground.

Way forward

• Extensive pre-legislative consultation is must for any sensitive law as such.
• Privacy and data protection-related concerns must be addressed in the Rules formulated under the legislation and through model Prison Manuals that States can refer to.

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