Overview
Recently, The Criminal Procedural Identification Bill, Bill No. 93 of 2022 was presented in the Lok Sabha by the Home Minister of India Mr. Amit Shah. A bill endows legal sanction to the collecting of measures of prisoners and other people for distinguishing and investigating criminal situations, maintaining records, and for things related to an incidental thereof. This bill intends to amend the current enforced Identification of Prisoners Act of 1920. The scope of current legislation for the objective of recognition and identification of prisoners is narrowed down by authorizing the recording of thumb impressions and foot impressions subjected to a certain category of prisoners. Moreover, this bill seeks to widen the scope of measurements. The new bill also broadens the “ambit of individuals” whose measures can be taken to facilitate the investigating authorities in foregathering crucial legally admissible proof and proving the accused’s culpability.
Analysis
The Identification of Prisoners Act of 1920 is proposed to be repealed by the bill, which will be implemented in the 73rd year of the Republic of India, subject to notification in the Official Gazette by the Central Government.
The bill defines “measurements” as fingerprints, palm prints, footprints, pictures, iris scans, physical examinations, biological samples, and their analysis. It also covers a person’s specific attributes, such as signatures, handwriting, or other examinations referred u/s 53 or 53A of the Code of Criminal Procedure of 1973.
According to Section 3 of the proposed bill, any person who has been sentenced for an offense or ordered to give security or arrested in association with any offense or detained under any preventive detention law, if so required, shall have to allow measurements taken by “Police Officer” defined u/s 2 (c) means either officer in charge of a police station or an officer not below the rank of Head Constable or “Prison Officer” defined u/s 2 (e) means not below the rank of Head Warden. However, a person who is arrested for a crime under any law, except for a crime against a child or a woman or any other crime that bears a sentence of at least seven years in prison, is not required to consent to the collecting of biological samples under this section.
This bill also emphasizes the Power granted to the Magistrate if required and satisfied, to direct any person to give a measurement to proceed under any law. Refusal to allow taking measurements would lead to the offence u/s 186 of the Indian Penal Code of 1860 and also adjure the police officer or prison officer to take measurements in the prescribed modus operandi.
According to section 7 of the aforesaid bill, Court shall not entertain any suit or proceeding against any person or act done with honest intent under this act or any other act there under.
In addition, this also bestows legal backing to maintain the records of measurements in digital or electric form for seventy-five years from the date of the collection of such data. The records of measurements can be destroyed if; the person has not been convicted previously under any law and acquitted or discharged, or released without trial. The only exception for this clause is if a court or magistrate asks or directs for the retention of the record in writing with a due reason.
According to Section 4 of this act, The National Crime Records Bureau has the authority to store, preserve, and destroy the record of measurements at the national level, process such records with relevant crime and criminal records, and share and disseminate such records with any law enforcement agency in a manner that may be prescribed. NCRB has the authority to collect the record of measurements with the aim of prevention, detection, investigation, and prosecution of “offence” (mentioned u/s 40 of Indian Penal Code of 1860).
Rulemaking power on the subject matter is extended to the Central Government; previously it was limited to the State Government. If this Bill becomes the Act, both the government would have the right to prepare a set of rules on numerous matters such as (i) the method of collecting details and (ii) the method of collection, retention, preservation, deletion, distribution, and disposing of details by NCRB, may be made by the federal or state governments.
Issues cited
- The Criminal Procedure (Identification) Bill dilates the ambit of measurements to be collected which includes Biometrics, Physical and Biological samples, and Behavioral attributes, moreover it doesn’t have any provision to prohibit taking DNA samples.
- The Bill is loosely worded and it should be more explicit in terms of the collection of data. The bill states the exception of refusing to give a sample unless in case of an offense again a woman or a child or the offense with an imprisonment of not less than seven years. Suppose, if an offense of theft happens against a woman or a child then also, the accused has no resort to refusing to give the biological sample, which doesn’t seem reasonable.
- If a person is prosecuted for driving dangerously and refuses to give such samples and got charged u/s 186 of Indian Penal Code of 1860, if he got acquitted of the actual charge, he would be still liable for the subsequent charge resulting in compromise of his data stored for seventy-five years.
- The Bill also permits the signature and fingerprint collected in trivial offenses would also be stored for seventy-five years.
- This Bill could also be used as a weapon of government to prosecute opposition or activists and mala fide use the data stored against them.
Conclusion
As per the recommendation of the Law Commission 1980 while examining the 1920 Act, noted to revise it symmetrically with the latest trends in the investigation yielding an increase in conviction rate with a speedy trial. Undoubtedly, this would ameliorate the process of investigation. The DNA (Use and Application) Regulation Bill was introduced in June 2019 and laid for scrutiny before the Parliamentary Standing Committee, the Bill provides the legal structure for the goal of use and application of DNA technology to identify particular categories of people. There must be a special law aiming at the protection of biological data which comes under the protection of the Right to Privacy guaranteed under Article 21 of the Indian Constitution. It’s a need of an hour to enact the DNA Technology (Use and Application) Regulation Bill before legislating the Criminal Procedure Identification Bill and reading it in confluence.
Although the Bill has numerous advantages, this shall also bring out seen hurdles of violating one’s fundamental right to privacy and right to equality of law guaranteed under Article 21 and Article 14 respectively in the Indian Constitution.
Author(s) Name: Ayush Yadav (Marathwada Mitramandal Shankarrao Chavan Law College, Pune)
