The recent Criminal Procedure (Identification) Bill, 2022, which was passed by both Houses of Parliament, has created a furore. The Bill seeks to replace the Identification of Prisoners Act, 1920. The legislation will now be forwarded to the president for approval before it becomes law.
The Bill empowers and allows law enforcement agencies, especially the police, to collect, store and analyse physical and biological samples, iris and retina scans, signatures and handwriting of prisoners for the purpose of identification and probe in criminal matters. It would also be applied to persons detained under preventive detention laws.
The Bill expands on the type of data that may be collected, persons from whom it may be collected and the authority that may authorise such collection. It also provides for the data to be stored in a central database. Under both the 1920 Act and the 2022 Bill, resistance or refusal to give data will be considered an offence of obstructing a public servant from doing his duty.
In the 2022 Bill, the set of persons whose data may be collected includes persons convicted or arrested for any offence. It also expands the power of the magistrate to order collection from any person (earlier only from those arrested) to aid investigation. This differs from the observation of the Law Commission (1980) that the 1920 Act is based on the principle that the less serious the offence, the more restricted should be the power to take coercive measures. Thus, the Bill significantly widens the scope of individual data which can be collected as well as the ambit of individuals whose “measurements” can be taken.
Under the 1920 Act, a magistrate may order data to be collected in order to aid the investigation of an offence. The Bill does not have any such safeguard. Instead, it lowers the level of the police officer who may take the measurement (from sub-inspector to head constable) and also allows the head warder of a prison to take measurements. Section 5 of the Act empowers only a first class magistrate to direct any person to allow measurements or photograph to be taken.
The Bill widens the ambit of data to be collected to include biometrics (fingerprints, palmprints, footprints, iris and retina scan), physical and biological samples (not defined but could include blood, semen, saliva, etc.), and behavioural attributes (signature, handwriting and could include voice samples). It does not limit the measurements to those required for a specific investigation. It also does not specifically prohibit taking DNA samples (which may contain information other than just for determining identity). On the other hand, in the 1920 Act, only fingerprints, footprints and photographs were allowed to be collected.
The Bill makes an exception in the case of biological samples. A person may refuse to give such samples unless he is arrested for an offence:
(i) against a woman or a child
(ii) that carries a minimum punishment of seven years imprisonment.
The Bill allows retaining the data for 75 years. The data would be deleted only on the final acquittal or discharge of a person arrested for an offence. The retention of data in a central database and its potential use for the investigation of offences in future may also not meet the necessity and proportionality standards. Presently, the police is permitted to take finger and footprint impressions of a limited category of convicts and non-convicted persons.
According to the Criminal Procedure (Identification) Bill 2022, the National Crime Records Bureau will be the central agency to maintain the records. It will share the data with law enforcement agencies. Further, states/UTs may notify agencies to collect, preserve and share data in their respective jurisdictions. Records will be destroyed in the case of persons who are acquitted after all appeals or those released without trial. However, in such cases, a court or magistrate may direct the retention of details after recording the reasons in writing.
In 1980, the Law Commission of India, while examining the 1920 Act, had noted the need to revise it to bring it in line with modern trends in criminal investigation. In March 2003, the Expert Committee on Reforms of the Criminal Justice System recommended amending the 1920 Act to empower the magistrate to authorise the collection of data, such as blood samples for DNA, hair, saliva and semen.
At the time of the debate on the Bill, Opposition leaders expressed concern about the Bill violating the right to privacy of a person. They argued that there was great scope of misuse of the proposed law to harass individuals. Several Opposition parties also termed the bill unconstitutional and draconian.
Before it was passed in the Rajya Sabha, Congress leader P Chidambaram said that the Bill should be sent to the select committee for discussion as its provisions can be misused. He said the police could arrest and take fingerprints of anyone, including those taking part in political rallies. Referring to Supreme Court judgements, he said: “Since 2010, the law in this country is that narco analysis, polygraph tests and BEAP (brain electrical activation profile) are unlawful, unconstitutional. They violate liberty and privacy.”
Congress MP Manish Tewari termed the legislation as draconian and against civil liberties. He argued that the proposed law was a violation of both Article 20 and Sub-Article 3, which explicitly states that no person accused of any offence shall be compelled to be a witness against himself.
Addressing the Opposition’s concerns, Home Minister Amit Shah said in Parliament that the Bill was only aimed to strengthen the capacity of the police and the forensic department. He assured that the biometric data of political workers detained during agitations will not be collected by the police under the new law.
Stating that the 102-year-old Identification of Prisoners Act, 1920, was inadequate and did not fit in modern times, Shah said in the Rajya Sabha that the Bill will improve investigation procedures by utilising technology. “Under Section 3, the government of India has the right to make rules. We will define it and ensure that no person involved in a political agitation has to give (physical and biometric) measurements only for political agitation. But, if a political leader is arrested in a criminal case, then he will have to be at par with a citizen,” he said.
Shah said that the provisions will be used only in the cases of heinous crimes and corresponding clarifications will follow in the Rules. The data collected will be completely secure, he said. “No provision of this Bill permits performing narco analysis, polygraph tests and brain mapping of any prisoner,” he added.
—By Shivam Sharma and India Legal Bureau