By Shivanand Pandit
The central government has set the ball rolling towards offering public and private sector business establishments access to the national database of crimes and criminals for contextual examination. The government says that it has taken such an action to guarantee securer offices or workrooms. As a result, all business units such as private companies, public sector undertakings and government departments will now be able to scrutinise the background of a prospective employee for any criminal record through the Crime and Criminals Tracking Network Systems (CCTNS). By paying an emolument, these business establishments can get access to the data on detentions, imprisonments, current investigations, court cases and lists of decreed criminals, which they would then be able to assess before hiring an individual.
According to the website of the Union home ministry which lists the citizen amenities offered by CCTNS, citizens, institutions and companies can seek past history of prospective employees, including domestic servants, drivers, teachers, security guards, tenants, and others. Residents of the country can also search for documentation of their own antecedents. Government units can also scrutinise the character and past history of employees at the time of recruitment through the CCTNS database.
CCTNS is an integrated storehouse of criminal proofs throughout the nation’s digitally interwoven police stations.
Gangapuram Kishan Reddy, the minister of state for home affairs, had recently mentioned that out of the entire 16,098 police stations in India, the CCTNS software is being utilised in more than 95 percent of them. The CCTNS is linked with police stations and investigative organisations from all over India and gathers real-time information on cases, criminals, courts, fingerprint bureaus, forensic labs, etc. The information may also comprise vehicle registration details, photographs and even screenshots. The database had approximately 28 crore reports till December 2020 and is being updated every minute.
To make the project a reality, the home ministry gave permission for the monetisation of the New Delhi-based CCTNS national data centre. The task of developing a portal for this has been assigned to the National Informatics Centre (NIC). Under it, companies can get access to databanks of the National Data Centre (NDC), National Database on Sexual Offenders (NDSO) and Interoperable Criminal Justice System (ICJS). The system which is to be developed by NIC will pair the given particulars of individuals, such as name, age or age radius, state or district or police stations of his or her current and permanent address, with prevailing felonious records under CCTNS. If an individual’s name is located in the data, the user will be able to verify the details, right down to the level of FIRs, in the case of police cases.
Many experts have conflicting opinions and voiced their worries over confidentiality after the home ministry informed the Rajya Sabha of allowing the National Crime Records Bureau to use an automated facial recognition system (AFRS) for the recognition of criminals, unclaimed bodies and missing persons.
The Director of Asia policy at Access Now and Board Chairperson, Internet Freedom Foundation, Raman Jit Singh Chima, said that there is a design of government assembling data and making it available for the industry and Aarogya Setu app is one such example. He also said that CCTNS has countless delicate data which is a problem. There is no supervision and permitting a third party access to such data not only invades the right to privacy but can also lead to misapplication of data, particularly when the Data Protection Bill has not been approved by Parliament.
The research director at the Centre for Internet and Society (CIS), Amber Sinha, said that such subtle data, which already suffers from social disparity and lack of discernment, can lead to further unfairness if it reaches the hands of commercial syndicates.
Former director of the National Crime Records Bureau, Ish Kumar, said that the present manner of providing access to the wide-ranging data is “cumbersome” and the move will assist business firms to get information and the government could also earn “some money”.
However, the home ministry, while placing all doubts at rest, mentioned that privacy will not be affected because AFRS will be retrieved only by law execution agencies. It also articulated that permitting private companies, public sector undertakings and government departments to access FIRs digitally would not give birth to any legal hitches and would depend solely on the employers if they desire to hire a potential employee with a criminal record.
In India, many of the bigger establishments avail of the services of a professional background screening partner while hiring key employees. Criminal background checks are done through comprehensive lawsuit searches of court records connecting civil or criminal cases. The data is accumulated from the information dispersed by courts of law. These comprise criminal suits at magistrate courts, criminal suits at district courts, criminal suits at tribunals, High Courts, and the Supreme Court.
However, organisations need to make sure that they are carrying out genuine database searches while running wide-ranging criminal background checks on a would be candidate. They should verify both Indian and overseas records to examine any link of the candidate with organised crime or any known mention in any court case. In India, the database can be retrieved from different courts of law. For availing of information relating to litigation, the National Crime Records Bureau and Central Bureau of Investigation’s most wanted rolls can be accessed. For acquiring the defaulters’ list, the database of RBI, SEBI and Central Vigilance Committee’s list of corrupt officials can also be explored.
Employers should select a specialised background diagnosing vendor who has satisfactory acquaintance and mandatory skill sets, along with access to the indexed criminal and litigation database. The written consent needs to be obtained from the candidate before commencing the process of criminal background examination.
Sadly, there is no precise statute on criminal background inspection in India. However, background testing can be executed by considering the provisions of the Indian Contract Act, Information Technology Act and the Indian Penal Code. Importantly, employers can be punished if they fail to treat as confidential any personal data assembled from staff as per the provisions of the Credit Information Companies (Regulation) Act, 2005. The intensity of the checks varies and the nature of the job of the prospective candidates should be looked into before conducting the examination. For instance, the criminal background verification is completely different in hiring a Chief Executive Officer than a day worker.
In India, a government worker gets suspended if he or she has spent 48 hours or more in police custody. The reason for the police custody can be anything, including dowry death charges. Public entities have their own guidelines and punitive boards to handle this by studying the case on an individual basis and then taking a call on the impending action. The final judgement on hiring can be taken after a broad appraisal of the criminal background checks.
The least an employer can do is to give an opportunity to the person to justify his/her standpoint relating to the instance before taking the final call on hiring. Criminal background checks are not limited to a specific city or region, but they work on a pan-India basis and occasionally have global implications as well. Even though in India criminal background checks are not customary, they are significant and should be part of the complete background check procedure.
The government’s initiative of allowing public and private sector business establishments to access the national database of crimes and criminals for contextual scrutiny is a good move although many experts have raised concerns over privacy of the database. However, any such restriction, as the Supreme Court of India held in KS Puttaswamy vs Union of India (2017), must be tested against the requirements of legality, necessity and the doctrine of proportionality. The government needs to address the apprehensions raised by the experts over confidentiality of the database. If the plan is executed, it should be under a comprehensive data protection law to avoid unpredictable hazards and disproportionate limitations of fundamental rights.
—The writer is a financial and tax specialist, author and public speaker based in Margao, Goa
Need for clear thinking
The employers must have absolute clarity on the following points before they begin the process of scrutiny:-
- What is your objective of conducting criminal background checks?
- Who should you consider for conducting criminal background checks?
- What database can be used to conduct criminal background checks?
- What is the process of conducting criminal background checks?
- What are the different Indian laws that you need to be aware of before conducting criminal background checks?
- What is the nature of the job being applied for?
- Can you terminate an employee on the basis of the results obtained from their criminal background checks?
- What should you do if you find anything positive pertaining to the criminal records through the background checks?