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Context

Passed by the Parliament this week, the Bill seeks to repeal The Identification of Prisoners Act, 1920 and expands the scope of information the government can collect from convicts, arrested persons and other persons such as habitual offenders.

According to Union Home Minister, the sole objective of the legislation is:

1. To improve the conviction rate in the country
2. To protect the human rights of crores of law-abiding citizens
3. Send a strong message in the society

Opposition members, however, claim the legislation is:

1. Violative of fundamental rights
2. Infringes upon individual freedom and privacy

 How valid are these concerns? What checks and balances does the proposed law provide to prevent misuse and how effective will it be in strengthening our criminal justice system?

The Criminal Procedure (Identification) Bill, 2022: Major Propositions

• It authorises law enforcement agencies to collect, store and analyse physical and biological samples of convicts and other persons for the purposes of identification and investigation in criminal matters.
• It seeks to repeal the Identification of Prisoners Act 1920 which provided for the collection of only fingerprints and footprints.
• The said Act, in its present form, provides access to a limited category of persons whose body measurements can be taken.
• As per the Bill, any state government OR Union Territory administration may notify an appropriate agency to collect, preserve and share the measurements of a person of interest in their respective jurisdictions.

Key features of the Bill

The Bill seeks 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.;
• Empower the National Crime Records Bureau (NCRB): To collect, store and preserve the record of measurements and for sharing, dissemination, destruction and disposal of records;
• Empower a Magistrate: To direct any person to give measurements; a Magistrate can also direct law enforcement officials to collect fingerprints, footprint impressions and photographs in the case of a specified category of convicted and non-convicted persons;
• Empower police or prison officers: To take measurements of any person who resists or refuses to give measurements
• Authorises police to record signatures, handwriting or other behavioural attributes: Referred to in section 53 or section 53A of the Code of Criminal Procedure, 1973, for the purposes of analysis.

Notable feature: Maintenance of Record

• The National Crime Records Bureau (NCRB) will be the repository of physical and biological samples, signature and handwriting data that can be preserved for at least 75 years.
• The record of these measurements will be retained in digital or electronic form for a period of seventy-five years from the date of collection.
• The court or Magistrate, for reasons to be recorded in writing, can direct agencies to maintain the records.
• The records are to be destroyed in the case of any person who has not been previously convicted of an offence punishable under any law with imprisonment for any term.

Refusal to Comply

• Resistance to or refusal to allow the taking of measurements under this Act shall be deemed to be an offence under section 186 of the Indian Penal Code (IPC);
• No suit or any other proceeding shall lie against any person for anything done, or intended to be done in good faith under this Act or any rule made thereunder;
• Central government or state government may, by notification in the Official Gazette, make rules for carrying out the purposes of this Act;
• Manner of collection, storing, preservation of measurements and sharing, dissemination, destruction and disposal of records under sub-section (1) of section 4;

Comparison of key provisions of the 1920 Act and the 2022 Bill

Why need such law?

• The world has undergone technological and scientific changes, crime and its trend have increased.
• Advanced countries across the globe are relying on new “measurement” techniques for reliable results.
• It was felt necessary to expand the “ambit of persons” whose measurements can be taken as this will help investigating agencies gather sufficient legally admissible evidence and establish the crime of the accused person.
• The Bill will not only help our investigation agencies but also increase prosecution.
• There is also a chance of an increase in conviction rates in courts through this.

Practical significance of the bill

• Beyond the accuracy of biometrics: The existing law only allowed authorities to take only fingerprint and footprint impressions of a limited category of convicted persons.
• Ambit of the persons: The new bill also expands the “ambit of persons” whose measurements can be collected will help the investigating agencies to obtain necessary legally admissible evidence and establish the crime of the accused person.
• Unfolding the covert crimes: Criminals are proficient in identity theft and identity fraud. They keep changing their modus operandi.
• Enhancing national security: The bill will help to check serious national and global threats posed by them.

Issues with the Bill

• Un-constitutionality: The proposed law will be debated against Article 20(3) of the Constitution, which is a fundamental right that guarantees the right against self-incrimination.
• Violation of Article 21: Dissemination of biometric and biological data is against Article 21 of the Constitution.
• Misuse of preventive detention provisions: The Bill also seeks to apply these provisions to persons held under any preventive detention law.
• Legislative competence of Centre: The Bill was beyond the legislative competence of Parliament as it violated fundamental rights of citizens, including the right to privacy.
• Lack of data protection in India: While the European Union has the General Data Privacy Regulation (GDPR) and additional statutes, India’s structure is still in development, with new regulations promising to rationalise data protection.
• Non-conformity of parliamentary debate: The government resorted to the usual binary arguments: If prisoners have human rights, so do victims. The Bill is not about victims but about arrestees, detenus and prisoners.
• Others: While the jurisprudence around the right to be forgotten is still in an early stage in India, the Puttaswamy judgment discusses it as a facet of the fundamental right to privacy.

Potential for Misuse

• Contentious provisions: The Bill proposes to collect samples even from protesters engaged in political protests. There is no MP, MLA, political worker, trade unionist, student leader, social activist or progressive writer or poet who has never been arrested or who can claim to be never be arrested.
• Promotes self-incrimination: The bill fails to comply with Article 20(3) of the Constitution, which explicitly states that no person accused of any offence shall be compelled to be a witness against himself.
• Violation of prisoners’ rights: Use of force to take measurements in the Bill violates the rights of the prisoners laid down in series of Supreme Court judgements, such as A.K. Gopalan (1950), Kharak Singh (1962), Charles Sobhraj (1978), Sheela Barse (1983) and Pramod Kumar Saxena (2008).
• Lack of clarity: The statement of objects says it provides for collection of measurements for “convicts and other persons” but the expression “other persons” is not defined. It is ambiguous whether the ‘measurements’ include narcoanalysis, polygraph test, BEAP and psychiatric examination.
• Overpowering the state: The bill overpowers the state by facilitating invasive biometric measurements for all arrested, convicted, and detained persons, regardless of the gravity of the offense.
• Profiling of the criminals (and the citizens): If taken to its logical conclusion is an attempt to create a comprehensive profile of all the citizens in this country.  

Way forward

• Balancing threats and rights: No society is perfect, nor is ours. There are deeply held biases and prejudices embedded in our social consciousness. Our police is a product of its social milieu, and as such is far from being perfect. However, that does not mean we do not empower it with requisite powers and instruments.
• Political will: There is no law in India which is not misused. We can have much political willpower that we will not allow it to be misused.
• Third-party regulation: The bill can limit state power with third party regulator having the power to enforce the rules and penalise infractions.
• Global best practices: These best practices must go hand in hand with expanded biometrics collection rather than following as an afterthought.

Only then can the government’s stated intent of modernising its criminal identification processes turn into a beneficial reality, rather than a citizen’s nightmare.