Analysing the Criminal Procedure (Identification) Bill, 2022

INTRODUCTION

The Criminal Procedure (Identification) Bill, 2022 (hereinafter referred to as “Bill”) was passed on 4th April 2022. The Bill repeals the existing Identification of Prisoners Act, 1920, (hereinafter referred to as “Act”) which permits the collection of personally identifiable information to conduct investigations. The Bill also authorizes the investigative agencies for taking measurements of convicts/ other persons for identification & investigation in criminal matters and to preserve records for the same. However, the difference between the two is stark as the latter is quite expansive and takes surveillance to an unprecedented level.

WHY THE NEW BILL?

The Identification of Prisoners Act, 1920 authorises the recording of only finger impressions and foot-print impressions (defined as measurements) of convicts and some other persons with the prior permission of the Magistrate. It also bars the storage of such information beyond a certain period except in certain cases. It is argued that this has provided access to not only a limited category of persons but also the ambit of capturable data. The Law Commission, in its 87th report, also recommended its “expansion because of the progress made in forensic technologies and to make it correspond with modern trends in criminal investigation”.  The bill incorporates this recommendation when it states, in its statement of objects and reasons, that with the recognition of the credible new “measurement” techniques, provisions need to be made to introduce them in the currently limited measurements. Further, it broadens the ambit of persons from whom the suggested measurements can be taken so that legally admissible evidence could be used for an effective criminal investigation.

SCHEME OF THE BILL

What it seeks to do: The Bill seeks to collect what it terms “measurements” from certain classes of people and provide for its storage, preservation and dissemination.

What can be collected: Clause 2(1)(b) of the Bill defines “measurements” that may be taken which include “finger impressions, palm-print impressions, foot-print impressions, photographs, iris and retina scan, physical, biological samples and their analysis, behavioural attributes including signatures, handwriting or any other examination referred to in section 53 or section 53A of the Code of Criminal procedure, 1973.” The examinations under Sec 53 of the Code of Criminal Procedure, 1973 (hereinafter referred to as the “Code”) include blood, bloodstains, semen, swabs in case of sexual offences, hair samples and fingernail clippings by the use of modern and scientific techniques including DNA profiling”. Section 53A provides for the recording of additional particulars, namely, age and marks of injury.

Who may be compelled to provide and by whom: Clause 3 of the Bill allows a police or prison officer, if required, to compel the following to give their “measurements”:

• a person convicted of any offence under a law in force;
• a person ordered to give security for maintaining peace or good behaviour. The reasons and procedures for which a person can be ordered to give security for peace or good behaviour have been dealt with under Sec 107-110 of the Code of Criminal Procedure, 1973.
• a person detained under preventive detention law;
• person arrested for an offence. In this particular instance, measurements except biological samples can be collected. However, if the offence is one against a child or woman, or is an offence punishable with imprisonment of 7 years or more, the persons can be compelled to provide biological samples as well;
• any person if the Magistrate is satisfied that it is necessary for investigation.

What can be done with the collected measurements:  The Bill uses two variations of the term “measurements”. One “measurements” as defined under Clauses 3 and 5, and the other ‘records of measurements’ in Clause 4 which indicates the documentation of the collected measurements. Clause 4(1) enables the National Crime Records Bureau to collect, store, preserve, destroy, process, share and disseminate the “records of measurement”. The retention period of such records, in digital or electronic form, is seventy-five years from the date of collection. The destruction of records is available for the records of persons who have no previous conviction and are released without trial or discharged or acquitted by the Court. Even here, the Magistrate has the power to continue such preservation for reasons.

A COMPARISON

CONCERNS

Violates Article 14 of the Constitution of India:

Article 14 of the Constitution is a safeguard against the State’s arbitrariness. But the Bill falls foul because of the following reasons:

• excessively delegates legislative powers by giving the governments, both State and Central, wide rule-making powers without adequate guidance;
• grants excessive discretion to compel persons to allow taking their measurements which raises concern of discriminatory exercise of these powers;
• fails to disclose the rationale behind the taking of measurements and mechanism for the destruction of records;
• no rational nexus for the classification of arrested persons based on gender/age of victims and severity of the punishment provided for the offence.

Violates Article 20(3) of the Constitution of India:

The Bill does not provide for an enhanced definition of the term “behavioural attributes”. This could lead to an expansive interpretation and could be understood to include polygraph tests and narco-analysis which were expressly prohibited by the Supreme Court in Selvi V State of Karnataka.

Violates Article 21 of the Constitution of India:

The information enumerated under the Bill forms part of the personal data of individuals and attracts protection under the right of privacy. But the bill infringes upon informational privacy when it fails to satisfy the fourfold requirement of the doctrine of proportionality laid down in Justice KS Puttuswamy v Union Of India. It has the legitimate aim of improving investigation but fails the prongs of suitability, necessity and balancing. The Law Commission’s report has noted that “the law must try to strike a proper balance between social needs and individual privacy“. But it ignores the cautionary note and permits the collection of measurements of any person, whether arrested/ accused/ not arrested for the sake of aiding the investigation.

Issues with the reliability of the use of data:

It permits the collection and storage of data on the assumption that it will make the investigation “efficient and expeditious”. However, there exists no scientific evidence to support the reliability of forensic comparison methods as there is no literature available suggesting that some of the measurements mentioned are unique to an individual. For instance, the uniqueness of fingerprint impressions has been doubted as current studies show that they are highly variable among individuals but the rarity of certain features or features is yet to be determined. Courts have held that handwriting evidence analysis is opinion evidence that cannot replace direct evidence.

Lack of skills:

Clause 3 of the Bill qualifies police officers (not below the rank of a Head Constable) and prison officers (not below the rank of a Head Warder) to take measurements. But these officials do not possess the desired skills and qualifications and would require training programs. This would also entail a robust and effective training program which is rare to be seen. Further, the Bill empowers State governments and UTs to notify appropriate agencies for collection and preservation of sensitive information. With no clarity on who these appropriate agencies can be, they may be assigned to a private and unregulated agency which raises questions about the State’s obligations to administer justice.

CONCLUSIONS

The Criminal Procedure (Identification) Bill, 2022 was introduced to incorporate the use of modern means of a collection of acceptable body dimensions to aid the criminal investigation. It fails, not only to adhere to the constitutional principles of equality, privacy and self-incrimination but also fails to address regulation and implementation concerns. In simpler words, it lacks depth and falls short of standard parameters. Thus, the vague provisions of the Bill must be defined in detail and it must be modified to qualify the test of constitutionality.

Author(s) Name: Reeta Choudhary