By Nishant Kumar
The Criminal Procedure (Identification) Bill, 2022 got the approval of the President on April 18, 2022. The bill replaces The Identification of Prisoners Act, 1920 which allows the collection of identifiable information like fingerprints, footprints from the convicts. The primary motive cited behind the introduction of the bill is to increase the rate of convictions. Basically the bill has increased the ambit of 1920 act and expands the power of authorities to collect the personal information of not only accused but also from any other person to aid the investigation. The bill has some serious ramifications on the right to privacy which is one of the most important fundamental rights under article 21 of the Indian constitution. This article seeks to bring into light the possible implications of the bill on the rights of convicts and under trials. It also looks into the relevancy of the bill in the current scenario and how far it may help in accomplishing the objective sought.
ABOUT THE BIL
Criminal Procedure (Identification) Bill seeks to expand the scope of collection of personal data from convicts, accused persons arrested under preventive detention laws and even from a random individual. It includes various new types of data which can be collected by the authorities to facilitate the process of investigation. It also expands the horizon of persons from whom such data can be collected. Further it muscles up the arms of authorities who can collect such personal information.
The bill adds biological samples, signatures, handwriting and other data like blood, semen, hair sample, swabs (which are mentioned under sections 53 and 53A of Crpc). Further, when we talk about the persons whose data may be collected for the analysis the bill defers from the 1920 act to a significant extent. It authorises the collection of personal data of anyone convicted irrespective of the severity of his or her offence. Furthermore, it adds a contentious provision which allows the collection of data from the person arrested under preventive detention laws. And lastly, it gives unbridled power to the officials to collect data from any person in order to aid in the investigation. According to the bill, apart from the office in charge of a police station, anyone of the rank head constable or above and additionally head warden of a prison can ask for the collection of personal data. The bill also empowers Metropolitan Magistrate or Judicial Magistrate of first class and in some cases Executive Magistrates to ask for the collection of data.
National Crime Records Bureau (NCRB) is the central agency for maintaing the records of the data collected. It is also responsible to share the data with different law enforcement agencies. The data collected has to be stored for a period of 75 years in digital form and the data of any person acquitted from the crime has to be permanently deleted. However, a court and Magistrate can withhold the data of even the acquitted person after citing a proper reason in writing.
ISSUES WITH THE BILL
The bill has increased the ambit of types of data that can be collected and has also increased the horizon of persons from whom such data can be collected. Information like finger prints, handwritings, blood, semen etc. are all personal information of an individual and exploiting this personal information without any reasonable nexus clearly violates the right to privacy. In the case of Justice K.S Puttaswamy v. UOI, right to privacy was recognized as one of the basic human rights which has also been mentioned under article 12 of the Universal Declaration of the Human Rights. However the Supreme Court agreed with the fact that the right to privacy is not an absolute right and it can be set aside if the government has any legitimate aim or the subjugation of the right is proportional to the issue in hand. However, the infringement of the privacy facilitated by the bill clearly goes beyond the test of proportionality and lacks reasonable nexus. The sole idea behind promulgation of this bill is to increase the rate of conviction. This, no doubt is an issue which requires an immediate attention but the cost at which this bill aims to address the issue is humongous. The bill allows the collection of personal data from anyone, even from the people convicted of minute offences like rash driving, pick pocketing etc. Subsequently, there is no clause in the bill which can prohibit officials from collecting unnecessary data which has no relevance to the case in hand. For instance a person is arrested of a petty offence and only his signature is relevant to the investigation, however officials have unbridled authority to collect any other data like blood sample, hair sample etc. Furthermore their data can be stored for 75 years and it can be shared with different law enforcement agencies without their permission.
Another conflicting proposition of this bill is collection of data from the people arrested under preventive detention laws. In contemporary times, preventive detention laws are being used for suppressing dissents and anti-incumbent protests. Many renowned activists have been arrested under the preventive detention law in the veil of maintaining peace and tranquility in the country. Most of those arrested are oblivious of the crime they are usually accused of. Collecting and storing their personal information will only add woes to their precarious condition. Moreover, government can also use the data to strong arm themselves against those activists. Moving on the bill also allows the collection of data from any random person (not just from the person arrested) with the permission from the magistrate to aid the investigation. Now this again is a very vague proposition as it does not cite any criteria under which a person can be asked to give his or her personal data. It would not be unwarranted to assume that this provision is susceptible to exploitation by the people in power and the rights of even innocent people hangs in precarious position vulnerable to be trampled.
The bill requires that the data of the person acquitted of the offence should be destroyed permanently. But it also adds a clause wherein a court or magistrate can withhold the destruction of such data by giving some reasonable nexus in writing. Again the bill fails to elaborate the extent of this vague word ‘reasonable’. The clause is arbitrary and subject to exploitation since it can be interpreted in different ways according to the whims and fancies of officials.
The bill provides various consequential amendments which can have severe ramifications on the rights of different group of individuals. The questions to be asked here is, whether these changes are relevant in the current scenario, to what extent are they going to fulfill the objective and even if they do fulfill the objective to some extent; do they pass the test of proportionality and reasonableness. The objective here is to increase the rate of convictions, which can very well be achieved by the strict enforcement of extant laws. There are many infelicitous acts which hinder the process of justice, for instance corruption, bribing, shared interests of culprits and officials, unnecessary delays in the admission of justice etc. Our law enforcement agencies lack proper training and infrastructures to deal with the criminals. Government should strive to address these issues which are graver in nature and which can actually provide some solution to the problem in hand.
The bill may aid in the investigation to some extent but it has many serious drawbacks. We have a history where government has been exploiting the laws for the sake of its own benefit which makes this law all the more vulnerable. Through this law privacy rights of not only convicts but also many innocent individuals can be compromised with. It can also be used to target few individual to suppress their freedom of speech and expression. Further it should be noted how this bill has been clandestinely linked with preventive detention laws, which has been the ultimate weapon of our government against dissents. Clearly the bill goes beyond the contours of proportionality and can be used to jeopardize the fundamental rights of the citizens. Right to privacy has been recognized as an important human right not only by our apex court but also by the Universal Declaration of the Human Rights. It should be the primary obligation of the government to protect the rights of its citizens and government would be failing in its duty by introducing such dubious Orwellian era laws.
The Author is a first year student from Hidayatullah National Law University Raipur.