Is Criminal Procedure Identification Act arbitrary and overreaching? – A Sombre Prognosis
An entrenched criminal justice system is extremely important for an effective administration. India’s modern criminal justice system traces back its roots to the colonial era. The ruling British people introduced the concept of codified laws to manage criminal acts in the territory. Astonishingly the major criminal laws in India, i.e. Indian Penal Code and Code of Criminal Procedure have not seen major amendments since their commencement. The criminal law amendment bills presented in the Parliament so far were either passed unanimously or with a great majority. But the recent attempt of the Indian government to change the system to deal with criminal cases and the accused is the topic of debate not only at the Parliamentary or political level but also the talk of the tea stalls nowadays.
The Criminal Procedure (Identification) Bill, 2022 was introduced in Lok Sabha on 28 March 2022 by Amit Shah, Minister of Home Affairs. Amid heated protests, the Bill was passed by the lower house on 4 April and by the upper house on 6 April. Briefly, the said Bill authorizes the officers to collect ‘measurements’ from certain classes of persons and it also permits the processing, storage, preservation, dissemination, and destruction with the aim of identification and investigation in criminal cases.
The Bill widens the ambit of ‘measurements’ and allows the police to collect physical and biometric data as well as to record the behavioral attributes of the convicts or the accused persons. It is also noteworthy here that there existed an Act titled the Identification of Prisoners Act, of 1920 regulating the identification and investigation of criminal matters. But with the coming of The Criminal Procedure Identification Act of 2022, the former Act has been repealed.
Key Features of the Criminal Procedure Identification Act
The most important term that has to be discussed in the beginning while discussing this Act is ‘measurements’ as the list of data to be collected has been enlarged under this term. “Measurements” includes finger impressions, palm-print impressions, foot-print impressions, photographs, iris and retina scans, physical, and biological samples and their analysis, behavioral attributes including signatures, handwriting, or any other examination referred to in Section 53 or Section 53A of the Code of Criminal Procedure, 1973. The same term in the Act of 1920 included only fingerprints and footprint impressions.
Apart from this term, the range of classes of persons whose data may be collected has also been stretched. Earlier, the persons convicted of any offense punishable with rigorous imprisonment for a term of one year or more, or of any offense which would render him liable to enhanced punishment on a subsequent conviction. Furthermore, the person who has been ordered to give security for his good behavior under Section 118 of the Code of Criminal Procedure is also liable to provide the measurements. The new act has expanded this scope.
As per the recent changes, a person convicted of an offense punishable under any law for the time being in force is liable to give his measurements to the police officer. In addition, a police officer or a prison officer can take the measurements of any person who has been ordered to give security for his good behavior or maintaining peace under Section 117 of the Code of Criminal Procedure, 1973 for a proceeding under Section 107 or Section 108 or Section 109 or Section 110 of the said Code.
Also, a person arrested in connection with an offense punishable under any law for the time being in force or detained under any preventive detention law can be asked for his measurements as per the new law. Section 4(1) gives the National Crime Records Bureau the authority to collect, store, preserve, destroy, process, share and disseminate the records and Section 4(2) allows retaining the data in digital or electronic form for seventy-five years from the date of collection. Section 5 gives the power to the magistrate to direct any person to give his measurements.
The act further states that in case a person refuses to allow the taking of measurements, that refusal shall be deemed to be an offense under Section 186 of the Indian Penal Code. In such a case, it shall be lawful for the police officer or prison officer to take such measurements in such manner as may be prescribed.
Why has this Act attracted criticism?
The act has faced lots of controversies by not only the opposition in the Parliament but also the citizens of the country. Various issues have been raised to criticize the said act, with violation of fundamental rights and privacy concerns being the major ones. When the Bill was presented in the Parliament, Congress MP Manish Tewari from Anandpur Sahib Constituency opposed the Bill and argued that it is in derogation of both Article 20(3) and Article 21 of the Constitution of India and therefore beyond the legislative competence of the house.
Referring to the right against self-incrimination, he added that Article 20(3) explicitly states no person accused of any offense shall be compelled to be a witness against himself. The words ‘biological sample and their analysis’ in clause 2(1)(b) of the Act could extend to narco analysis and brain mapping. When it is made coercive in terms of clause 5 of the Act, it is a violation of Article 20(3) of the Indian Constitution.
He further said that the implied use of force in clause 6(1) to take measurements violates the rights of prisoners laid down in a catena of Supreme Court judgments, viz. AK Gopalan vs. State of Madras, Kharak Singh vs. State of Uttar Pradesh and Ors, Charles Sobhraj vs. The Superintendent, Central Jail, Tihar, Sheela Barse vs. State of Maharashtra and Pramod Kumar Saxena vs. Union of India. Section 4(2) of the Criminal Procedure Identification Act states that a record of measurement shall be maintained for 75 years from the date of collection that violates the right to be forgotten enshrined in the right to life and personal liberty under Article 21 of the Constitution in terms of the Puttaswamy case. In conclusion, he made a political statement asking for deliberation before sponsoring legislation that hits the fundamental rights guaranteed under Part III of the Indian Constitution.
Parliamentary Criticism of the Criminal Procedure Identification Act
The aforementioned Member of Parliament has described almost all the statements of criticism but other members like Adhir Ranjan Chowdhury, Gaurav Gogoi, Dayanidhi Maran, Mahua Moitra, Sougata Ray, Bhartruhari Mahtab, Supriya Sule, Kunwar Danish Ali, E T Mohammed Basheer, N K Premachandran, Syed Imtiaz Jaleel and many others have also criticized the Act and stated several other reasons why the Act is not good for India. On the other side, some other members also voted in favor of the Act.
A BJP MP Vishnu Dayal Ram from Palamu, Jharkhand supported the Act saying that it would help improve conviction rates and curb crime. He also added that criminals kept changing their modus operandi, so investigating agencies need to be more empowered. He then referred to the case Ritesh Sinha vs. State of Uttar Pradesh in which the Honourable Supreme Court held that compelling someone to give samples does not violate the right against self-incrimination. Brijendra Singh, Satyapal Singh, Aparajita Sarangi, P V Midhun Reddy, P Ravindhranath, and Navneet Ravi Rana are among the members who voted in favor of the Act.
In this way, the Act is subject to debates and discussions in the Indian Parliament. Besides the violation of fundamental rights and privacy concerns, the unavailability of data protection in our nation is also a major reason to criticize this Criminal Procedure Identification Act. Recent cases of Pegasus Spyware used to harvest personal information and data clearly show how unsafe our data is. Unlike European Union having General Data Privacy Regulation (GDPR) and the US has some state-based protection and constitutional protection, there is a lack of robust data protection and privacy structures in India. Moreover, as per the government’s admission, there has been a fivefold increase in cybercrimes over the past three years.
In such a situation where large government databases are at risk, enforcement of such legislation is of course not a good option. A vague mention of a provision like this is not enough. Instead, there needs to be a proper system of rules and regulations to begin the practice of electronic storage of measurements and data of the convicts and the accused.
Concluding the Discussion
In the midst of a lot of criticism, President Ram Nath Kovind has given his assent to the Criminal Procedure (Identification) Bill, 2022 and it was subsequently published in the Gazette of India (Extraordinary). This move has made the citizens knock on the doors of the Indian judiciary to save them from this exploitative Criminal Procedure Identification Act. A Public Interest Litigation was filed seeking judicial review of the provisions of the recently promulgated Criminal Procedure (Identification) Act, 2022 after which the Delhi High Court issued a notice to the Centre regarding the matter. The Bench was headed by Justice Vipin Sanghi, the in-office Chief Justice of Delhi High Court and Justice Navin Chawla was also a member of the Bench while issuing a notice to the Union of India through the Ministry of Home Affairs and Ministry of Law and Justice.
The petitioner Harshit Goel sought a judicial review of various sections of the Act, whereas Advocates Yashwant Singh, Harshit Anand, and Aman Naqvi submitted that forcibly taking measurements in the process of criminal identification is against the essence of Article 21 as it violates the standard of ‘due process of law’ required for restraining personal liberty. The plea submitted further states certain arguments of criticism which have been stated above. Advocate Amit Mahajan, appearing for Union of India, stated that the vires of an act cannot be challenged by a Public Interest Litigation and thus opposed the plea on the grounds of maintainability. Opposing the passing of this legislation has not been of great use. Now people expect the judiciary to have a say and shield their rights, especially the right to privacy.
In the light of aforesaid arguments and statements made, it can be concluded hereby that every change is subject to criticisms and opposition. But India is a democratic nation, the government is required to consider the opinion of its citizens and work accordingly to sustain the true spirit of democracy. If people are very strongly against this Act, then this must be taken into consideration and people’s demands must be fulfilled. The Parliament of India is the highest body to make legislation in India and thus holds great value but it cannot pass any exploitative Act that takes away the rights of the citizens. If the legislature does so, the judiciary has the power to step in. The citizens of India hope that their decision to approach the court will make them free from this draconian legislation.