By Kartik Shrivastava
Introduction
On 18th April this year, the President of India gave his assent to the contentious Criminal Procedure (Identification) Act, 2022. The Act was passed in both the Houses of Parliament on 6th April by a voice vote. The Act seeks to replace the 102-year-old colonial law on collecting “measurements” of the convicted and the arrested. The introduction of the Act has triggered a heated public debate. One side alleges that it is unconstitutional and another step in the making of a surveillance state. The other dismisses these concerns by saying that it was necessary to improve the criminal justice system and that many advanced countries already have such a law. Before going into the concerns raised, it is important to look at the provisions of the act.
Provisions of the Act
The government brought in the Act to update the existing law on collecting measurements, the Prisoners Act, 1920. The Act needs to be analysed in relation to the current regulations. The changes brought about by the legislation can be classified under four heads.
Type of data to be collected
First, expansion of the type of data that can be collected. The 1920 act had a narrow definition of measurements, including fingerprints, foot-print impressions and photographs. The present Act adds to this definition Iris and retina scans, biological samples and their’ analysis’, behavioural attributes including signatures and handwriting and other examinations referred to in Section 53 and 53A of the CrPC 1973 (which include blood, semen, swab, hair samples etc. including evidence with DNA profiling). The Act does not define terms like ‘biological samples’, ‘analysis’ and ‘behavioural attributes’, leaving considerable room for expansive interpretation.
Whose data can be collected?
Second, expanding the ambit of persons whose data can be collected. The 1920 Act allowed the collection of measurements of persons arrested or convicted for offences with a punishment of rigorous imprisonment not less than one year and persons ordered to give security for good behaviour or maintaining peace. The 2022 Act has allowed data collection of persons convicted or arrested for ANY offence. It also includes detained persons under any preventive detention law in force. On the order of the magistrate, the older law allowed, in other cases collection of data from any arrested person to aid criminal investigation. Now, any person, arrested or not, may be called upon to provide their data on the order of the magistrate if he considers it expedient for investigation of a crime. The logical conclusion of this provision is that now every person’s data can be collected and stored by the investigative agencies.
Who can collect the data?
Third, lowering the threshold of officers who can order the collection of data. The 1920 act prescribed that a police officer not below the rank of officer in charge of a police station or sub-inspector may direct data collection. According to the new Act, a police officer of a rank not below that of a head constable and the head warder of prison is allowed to take measurements. If a person refuses the collection of data by the police officer, then he is liable under section 186 of the IPC. Ultimately, the new Act has made it easier for the police to order data collection.
Where the data is to be stored?
Fourth, the Act also discusses where the data collected is to be stored and how and where it is used by whom. The NCRB is the central authority empowered to collect, store, preserve and destroy the record of measurements. The critical part here is that the NCRB shall retain the records in digital or electronic form for a period of 75 years, which is more than the average lifetime of a person in India. The only situation where data can be deleted is when a person is released without trial or acquitted by the court. In this case, too, the magistrate can order to keep the data. Consequently, a person can have their data stored by the government for their whole life for committing an offence as petty as not wearing a mask.
As one can see, the current Act has a few problematic provisions and ambiguities concerning the people opposing the Act.
Varying Opinions about the Act
The Act is a point of a heated discussion with lawyers, activists, experts and the opposition opposing it and the government and its supporters supporting it.
Need for revision of laws
Almost everyone agrees that there was a need for new law in collecting measurements as the existing one was colonial and outdated. Technology has advanced a lot since that law was made, and thus a new law was needed to mandate and regulate its use in criminal identification. The 87th Law Commission of India report had expressed the need for the same. In its statement of reasons and objects and its presentation in the parliament, the government has said that the Act’s purpose is to expedite the criminal investigation, prevent crime, and increase conviction rates. The issues with this law are how it was enacted and how it provides sweeping powers to the state through its use of ambiguous terms.
Lack of parliamentary discussion
The Act was brought into the parliament before being put up for pre-legislative consultation and was not present in the session’s legislative agenda in the parliament. It was hurriedly passed with a voice vote, with the government ignoring the demands of referring it to the parliamentary expert committee. The government has ensured that the rules for the Act will be framed after taking expert opinions to ensure it fulfils its mandate. In its current form, the Act clearly lacks the expert input it should have had.
Lacunae in the legislation
Consequently, the main concern with the Act’s substance, among others, is that it is unconstitutional for it violates the fundamental right against self-incrimination and the right to privacy. It is known that the collection of physical data such as hair clippings and fingerprints comes under reasonable restriction on the fundamental right against self-incrimination. Still, the vaguely used term ‘behavioural attributes’ may be construed to include psychiatric methods such as polygraphs and narco-analysis, which the Supreme Court has explicitly prohibited in Selvi v State of Karnataka.
At the same time, the Act fails the proportionality test laid down in the KS Puttaswamyjudgment, which held the Right to Privacy to be a fundamental right under article 21. The Act allows the collection of data of persons charged with any offence as well as of those in preventive detention and doesn’t try to describe further the category of cases where such power is necessary. The Act fails to create any rational nexus between the legitimate aim of aiding criminal investigation and the collection of data.
The Act also fails to fulfil the law commission’s recommendation, mentioning that the magistrate should be prescribed to record reasons for ordering the collection of data of a person. Contrarily the government has increased the ambit of people the magistrate can call to give their data. The Act creates a proviso where people can reject giving their ‘biological samples’ to the officer unless they have been accused of offences against women and children or any crime with punishment more than 7 years. It is not an adequate safeguard for two reasons. One, it only restricts the collection of biological samples; other data can still be collected. Two, because it places the burden of rejection on the people, who might not be aware of their rights in many cases. The preventive detention clause is also a point of contention, as observers apprehend that it will allow the government to profile political dissidents. For these reasons, the Act also fails to fulfil the requirement of proportionality; the extent of interference is not proportionate to its need. The government, in response, has said that all the advanced countries already have such a law in place, which is benefitting their criminal justice system. The advanced countries, which the government talks about, have robust data protection laws in place that protect citizens’ rights. Experts suggest India should also implement its currently in abeyance data protection law, which should prescribe stringent punishments for breach of privacy to provide balance against this law.
Conclusion
The government and the supporters of the Act have allayed people’s fears about this Act by giving hollow statements such as that the executive won’t enforce the law in a manner that violates the people’s human rights. However, a law is not evaluated on how it will be implemented but on how it can be implemented. With all its ambiguities and expansive language, the present Act has a lot of potential to be misused.
While it will be an extremity to say that this Act is another nail in the coffin of India’s civil liberties, it is true that it requires considerably more discussion, deliberation and changes than it was subjected to. More unfortunate is that this has become a normal state of affairs under the present regime.
The author is a second year student at Nalsar University of Law. He currently serves as the associate analyst in the blog Law and Other Things. His primary interests are constitutional law, criminal law and dispute resolution.
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