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The Criminal Procedure (Identification) Bill, which allows police to take physical and biological samples from convicts and people suspected of crimes, has received President Ram Nath Kovind’s approval. The Act was passed by the Look Sabha on April 4 and the Rajya Sabha on April 6, 2022. It supersedes the Identification of Prisoners Act of 1920. The Criminal Procedure (Identification) Bill 2022, introduced by Union Minister of State for Home Ajay Misra Teni in the Lok Sabha, empowers and allows law enforcement agencies, particularly the police, to collect, store, and analyses physical and biological samples of convicts for identification and investigation in criminal matters. According to the bill’s content, it gives investigative agencies legal permission to take relevant body measurements of those who are asked to furnish such measurements to make crime investigations more efficient and timely. This article attempts to weigh the benefits and drawbacks of the measure.
The Identification of Prisoners Act, which establishes the legislative elements governing the police and prisoners, was passed on September 9, 1920. Act No. 33 of 1920 was the law. The act made it legal to take photographs and measurements of criminals and others. It specifies that anyone guilty of a crime must provide a photograph and other physical measurements to the officer in charge of the investigation. Under Section 186 of the Indian Penal Code, 1860, any refusal to cooperate will be regarded as a criminal offence. The Act should be updated to include Adhere data and biometrics details such as iris scans, signatures, and voice samples, according to requests made in 2018.
The Identification of Prisoners Act of 1920, as amended, has become kalbahya (obsolete) from the standpoint of time and science. The Criminal Procedure (Identification) Bill of 2022 will not only close those gaps, but it will also broaden the scope of evidence that can be used to convict. The Law Commission suggested the review of the Identification of Prisoners Act of 1920 in 1980, claiming that they had had various conversations and communications with states. The Identification of Prisoners Act allows for the recording of only convicts’ finger and foot impressions, as well as some other categories of people, on the instructions of a magistrate, which the Centre claims gives access to a small group of people and a small amount of data.
According to the Bill’s stated objectives, it is necessary to provide for the capture and recording of body measurements for the unique identification of a person involved in any crime, which will aid investigating agencies in solving criminal cases, due to the advancement of technology and modern techniques. This will put us on the level with other “advanced” nations. Teni argued in the Lok Sabha that the Bill will make it easier to identify people with disabilities. Teni claimed in the Lok Sabha that the Bill will make it simpler to identify accused people and make investigations more effective and timely. He went on to say that this will boost the number of prosecutions and convictions in the courts. The existing law, the Identification of Prisoners Act of 1920, authorised only a limited category of convicted prisoners to have their fingerprints and footprints taken. The 2022 Bill calls for the employment of cutting-edge technology to take and record accurate body measurements.
Finger imprints, palm-print, and foot-print impressions, and pictures are among the body measures of convicts/persons that are sanctioned to be gathered under the bill. Bio-metric samples, such as iris and retina scans, as well as physical and biological samples and their analysis, are all available. Signatures, handwriting, or any other examination referred to in section 53 or section 53A of the Code of Criminal Procedure, 1973, are also included. In its current version, the bill authorizes law enforcement authorities to gather samples and data from already convicted felons and other people outside of the Criminal Procedure Code’s scope, and it introduces more modern methods of identification. It specifically authorizes police to take measures of anyone who resists or refuses to do so.
The utilization of biometric data and analysis will aid law enforcement authorities in identifying suspects despite changes in appearance and methods of concealment, which frequently stymie and extend investigations. The National Crime Records Bureau (NCRB) of India is also given authority to collect, store, and maintain records of measurements, as well as to share, disseminate, destroy, and dispose of records. The new bill’s most notable feature is that it includes provisions for capturing and recording acceptable body measurements utilizing modern technologies and methods. The previous law only authorised authorities to take fingerprint and footprint impressions of a select group of condemned individuals.
The new bill further widens the “ambit of persons” whose measures can be collected to assist investigative agencies in obtaining legally admissible evidence and proving the accused person’s guilt. The proposed bill will reduce the threat of identity theft and identity fraud from organized crime, cybercriminals, and terrorists. The bill will aid in the prevention of severe national and international risks presented by them.
Difference between Identification of Prisoners Act 1920 and Criminal Procedure Identification Bill 2022
|Identification of Prisoners 1920 Act||Criminal Procedure Identification 2022 Bill|
|Data Permitted to be collected||Data Permitted to be collected|
|Photographs, finger impressions, and footprint impressions were all permissible under the Act.||Palm prints, eye, and retina scans, signatures, and handwriting, as well as physical and biological samples such as blood, sperm, hair samples, and swabs are now included in the new amendment (Section 53 and 53A of the Criminal Procedure Code)|
|Persons whose data may be collected||Persons whose data may be collected|
|This information will be gathered from 1. People who have been convicted or arrested for crimes that carry a sentence of one year or more in prison. 2. Those who have been assigned to provide security in exchange for good behavior or sustaining the peace 3. Any arrested individual must assist a criminal investigation if the Magistrate directs the collecting of personal information from them.||The new law adds the following to the list: Those who have been convicted or arrested for a crime of any kind Detainees held under any preventative detention statute Any person (not only an arrested person) may be summoned by the Magistrate to assist in the investigation. Biological samples may only be collected forcibly from anyone imprisoned for crimes against women or children, or if the crime has a minimum sentence of seven years in jail.|
|Persons who may require/direct collection of data||Persons who may require/direct collection of data|
|1. Investigating officer, officer in charge of a police station, or of Sub-Inspector rank or above|
|1. On the orders of a police station commander or a police official with the rank of Head Constable or above. In addition, a prison’s Head Warder |
2. On the first-class order of the Metropolitan Magistrate or Judicial Magistrate.
3. The Executive Magistrate is in charge of those who are expected to maintain good behavior or peace.
The 1920 Act authorizes “measurements,” although it has a more limited reach than the Bill. Under the Code of Criminal Procedure, 1898, it is limited to taking such materials for the purpose of investigation and has procedural protections to prevent abuse of process.
The 1920 Act interprets the term ‘measurements’ narrowly, interpreting it to encompass finger and foot impressions. It also permits the taking of pictures for those who are covered by the 1920 Act. The collecting of samples does not require consent. The 1920 Act allows for the destruction of records of measurements and photographs of people who have been released without trial, discharged, or acquitted, with the exception of those who have been convicted of a crime punishable by a year or more in prison.
The Bill violates the fundamental rights to equality (given by Article 14), the right against self-incrimination (provided by Article 20(3)), and the right to privacy (provided by Article 21) of the Indian Constitution, according to a regulatory and scientific investigation.
The Bill violates Article 14 of the Constitution, which guarantees the right to equality. These issues vary from arbitrary classification to unreasonable classification. Furthermore, it gives the executive disproportionate legislative power, which violates the Constitution. The Bill appears to be arbitrary, granting officials broad and unrestrained discretionary powers.
The Bill allows police and prison officers to collect, store, and share certain measurements, as well as the National Crime Records Bureau [NCRB] to collect, store, destroy, process, and disseminate records of these measurements, if it is in the interest of preventing, detecting, investigating, and prosecuting crimes under the law.
The Bill gives the executive undue powers in two ways: first, by giving the executive broad rule-making powers with no guidance, and second, by allowing bureaucrats like cops and prison officers to choose who they can compel to submit measures.
Clause 3 of the Bill states that a police or jail officer may take measurements of those listed on their own initiative or on the authority of a Magistrate under Clause 5. If such measures are “necessary” or “expedient,” they will be taken under clauses 3 and 5. The Bill, on the other hand, makes no distinction between what is ‘required’ and what is ‘expedient.’ How these measurements are to be taken will also be governed by the Union and state governments’ rules. In the lack of any guidance on the conditions or method for requiring a person to submit their measures, there appears to be no limit to the broad exercise of discretionary authority.
Violation of Doctrine of Reasonable Classification Under Article 14
The Supreme Court established the test for determining whether a classification is appropriate in Sheri Ram Krishna Dalmia vs. Justice S.R. Tendulkar (1958). First, the categorization must be based on intelligible differentia that distinguishes the classes; and second, the differentia and the Act’s aim must have a coherent relationship. As a result, it’s critical to consider Bill’s classification and goal in light of these criteria.
The categorization established under clause 3 of the Bill is a group of people who have been arrested for an offence against a woman or a child that is punishable by a sentence of seven years or more in prison. This group of people will be forced to provide their measurements to police or jail officers. Persons arrested for an offence that does not include a woman or a child and is punishable by a sentence of less than seven years in prison are not required to provide their measurements. The arrestees are categorized depending on the victim’s gender and age, as well as the penalty given for the offence. According to Bill’s Statement of Object and Reasons, the bill’s goal is to acquire enough legally admissible evidence to prove that the accused individual committed a crime and to speed up the investigation.
The question that must be asked is this: does the classification based on the gender and age of the victim, or the punishment imposed for the offence, serve the aim of determining the utility of the measurements collected or aid the effectiveness of the investigation of the crime? How does one determine that the collection of prescribed measurements benefits the investigation of crimes where the victims are women or children or where the offence is punishable with imprisonment for seven years or more? It is the nature of the offence and specific circumstances surrounding each case that determine whether the collection of biological samples or behavioral traits will aid and expedite the investigation.
Violation of Right to Privacy
In the Puttaswamy case, the Supreme Court ruled that the right to privacy is a basic right protected by Article 21 of the Constitution. The Supreme Court ruled in Puttaswamy vs. Union of India (II) (2018)that informational privacy, which includes biometric data and other personal information, is protected under Article 21 It can be claimed that an invasion of the right to privacy is constitutional if it passes the Puttaswamy II proportionality test. The idea of proportionality entails (i) a legitimate goal, (ii) appropriate means, (iii) need of means, and (IV) rigorous proportionality. The Bill has a genuine goal of improving crime investigation, detection, and prevention, but it fails to meet the doctrine’s other three conditions. As previously stated, it is difficult to see how the classification established by clause 3 of the Bill relates to the investigation. Furthermore, requiring “any person” to provide their measures under section 5 does not particularly assist in a criminal inquiry. As a result, since no rational connection can be made between the Bill’s provisions and its goal, it is acceptable to conclude that the Bill is not an appropriate way of achieving its legitimate goal.
Violation of Right Against Self Incarnation
The phrase ‘measurements,’ as defined in Clause 2(1) (b) of the Bill, and in particular the term ‘behavioral qualities,’ can be construed as testimonial. The term ‘behavioral traits’ can be interpreted in its broadest sense to include handwriting, signatures, and any other measurements as defined in Sections 53 and 53A of the CrPC. Because the police, a jail official, or a Magistrate has the authority to compel a specific class of individual to provide measures, numerous mental examination methods may be used. Polygraph testing, brain mapping, and narco-analysis are examples of these, which the Supreme Court clearly barred in Selvi vs. State of Karnataka (2010). It would be a violation of Article 20(3) of the Constitution if such an appraisal results in an incriminating admission.
The level to which the Bill infringes on the right to privacy is not required to fulfill Bill’s legitimate goal. Clause 5 of the Bill allows the Magistrate to take measurements from anyone if he or she considers it necessary for any investigation or process under the CrPC or any other legislation. The law makes no requirement that the individual from whom such measurements are collected be connected to the inquiry or procedure in any way, or that he or she is a suspect. There is no evidence to back up the assertion that a large and diverse database exists. There is no evidence to back up the idea that having a large and diverse database helps with crime prevention, detection, and investigation.
The Bill’s fourth clause allows for the storage of measurement records, although it does not specify why such data should be stored. In the absence of a clearly defined reason for which such a record may be utilized, the authorities’ broad and ambiguous powers can result in major invasions of an individual’s privacy. The measurements obtained under the Bill can also be used to gain access to an individual’s digital and physical belongings, including electronic equipment (such as cell phones and computers), even if they are not involved in a criminal investigation or proceeding or are not a suspect. The data gathered under the Bill can also be utilised to get access to an individual’s digital and physical belongings, including electronic devices (such as mobile phones and computers).
Under the Bill, sensitive personal information acquired, held, preserved, and disseminated must be relevant and confined to the purposes for which it is gathered and stored. Furthermore, the Bill calls for the collecting of all measurements, not only those that are appropriate or relevant to the crime that was committed. Finally, the Bill has a disproportionate impact on an individual’s right to privacy, and thus violates Article 21 of the Constitution for the reasons outlined above.
The level to which the Bill infringes on the right to privacy is not required to fulfill Bill’s legitimate goal. Clause 5 of the Bill allows the Magistrate to take measurements from anyone if he or she considers it necessary for any investigation or process under the CrPC or any other legislation. The law makes no requirement that the individual from whom such measurements are collected be connected to the inquiry or procedure in any way, or that he or she is a suspect. There is no evidence to back up the idea that having a large and diverse database helps with crime prevention, detection, and investigation. The Bill’s fourth clause allows for the storage of measurement records, although it does not specify why such data should be stored. In the absence of a clearly defined reason for which such a record may be utilized, the authorities’ broad and ambiguous powers can result in major invasions of an individual’s privacy. The measurements obtained under the Bill can also be used to gain access to an individual’s digital and physical property, including electronic devices, even if they are not involved in a criminal investigation or procedure or are not a suspect (such as mobile phones and computers). Under the Bill, sensitive personal information acquired, held, preserved, and disseminated must be relevant and confined to the purposes for which it is gathered and stored. Furthermore, the Bill calls for the collecting of all measurements, not only those that are appropriate or relevant to the crime that was committed. Finally, the Bill has a disproportionate impact on an individual’s right to privacy, and thus violates Article 21 of the Constitution for the reasons outlined above.
The Act was enacted by a colonial authority whose major goal was to maintain social control rather than individual welfare. Our Constitution, on the other hand, is based on a personal liberty ethos. It’s a shame, though, that the Bill promotes a harsher normative framework than the colonial one. More importantly, the Bill creates a dangerous end-product, a type of citizen who is obedient, does not engage in activities that the State considers unlawful, and does not protest.
The ‘prevention’ of all types of offences is one of the stated goals of data gathering and dissemination under the Bill. Such data collecting, on the other hand, will only serve to promote profiling, mass monitoring, and the suppression of dissent. With such a law in place, the state can build a centralized repository for ‘political prisoners’ and anyone detained for opposing the government’s policies. Citizens may readily be divided based on their attitude toward the government; the “bad apples” can be found, constantly monitored, and kept in check. As a result of the ongoing persecution, an increasing number of residents can be persuaded to be ‘good.’ As a result, lawmakers must address the aforementioned issues to reform the current legislation.
This article is authored by Vishal Gupta, student at National Law Institute University, Bhopal.