CRIMINAL PROCEDURE (IDENTIFICATION) BILL, 2022 - A BLATANT VIOLATION OF PRIVACY?
By Rumana Lal, 4th year BA.LLB, Vivekananda Institute of Professional Studies
The recently passed Criminal procedure (Identification) Bill, 2022 seeks to expand the ambit of measurements of the convicts or other persons, in order to increase the conviction rate in light of the rise in crimes. The passing of this bill raised concerns over the vast powers given to the state, with little regard for individuals’ privacy. This article deals with the elements of ambiguity present in the bill, how they are a violation of the fundamental rights of the individuals, and what is required for its effective implementation.
The Criminal Procedure (Identification) Bill was passed via voice vote by the Lok Sabha and Rajya Sabha and subsequently received the President’s assent on 18th April,2022.
It seeks to repeal the Identification of Prisoners Act,1920 which had limited the scope of measurements to finger impressions, foot print impressions and photographs of prisoners. The Criminal Procedure Identification Bill authorizes the police officer to take the measurements of the convicts or other persons for the purpose of identification and investigation in criminal matters and preserve the records for matters that are connected with it. The Magistrate may order such measurements to be taken to assist in the investigation of the crime. The statement of object of the bill provides that new measurement techniques are used by advanced countries and have gained worldwide recognition, but since the term measurement in the Identification of Prisoner’s Act,1920 was limited and the modern technology and techniques had not existed at that point of time, it failed to consider various body measurements. The bill now expands the ‘ambit of persons’ whose measurement can be taken, to help the investigation agencies to gather sufficient evidence to establish the crime and increase the conviction rate of the Accused persons.
MAJOR CHANGES PROPOSED IN THE BILL
The term measurement would now include finger impressions, palm print impressions, foot print impressions, photographs, iris and retina scan, physical, biological samples and their analysis, signatures, handwriting etc.
The bill empowers the National Crime Records Bureau of India (NCRB) to store, collect, preserve the records of the measurement in electronic or digital form for a period of 75 years and the records may also be shared with the various law enforcement agencies to assist in solving the crimes.
The bill empowers the magistrate to direct any persons to give vital details, which was earlier restricted to persons who were convicted or accused of heinous crimes. In case of resistance while taking measurements, the person shall be deemed to commit an offence under section 186 of Indian Penal Code, which attracts imprisonment of 3 months or fine up to Rs.500 or both.
On the other hand, the bill states that such persons who are not convicted of an offence against women or a child or who has committed an offence, punishable with imprisonment for less than 7 years are not obliged to give his biological sample. i.e. he may deny the permission to collect such samples.
PRESENCE OF AMBIGUITY
In the name of criminal reforms, the bill has expanded the power of state surveillance. While, it authorizes for taking vital details of ‘other persons’ for the purpose of investigation and identification of crime, it fails to define the same. The ambiguity in the term extends its application beyond Convicted persons, Arrested persons, Detainees, etc. Similarly, the bill does not specify what does the term ‘analysis’ mean. Use of such vague terminologies goes beyond the scope of law as it would give unrestricted powers to the law enforcement agencies, whereby they would interpret the laws as per their whims and fancies. It could also result in indirectly giving a legal backing to techniques which collect data from other sources. Such mass surveillance is prone to biasness and would be a blatant violation of the Fundamental rights of the individuals.
It is also important to note that the choice of refusal is only limited to giving of the biological samples, which is a part of measurements. The bill does not provide the choice to refuse the measurements taken in other forms. That is to say if so considered necessary by the police officer, the arrested person will be required to give their iris and retina scan.
Further, the provision of the bill states that the person may refuse to give his biological sample. In such circumstances the use of the word may instead of shall would be an escape route for the law enforcement agencies for the protection from giving measurements. There is also a lack of clarity as to how the Crime and Criminal Tracking Network and System (CCTNS) which is a centralized data base system operated by the National Crime Record Bureau (NCRB) would interact with the Criminal Procedure (Identification) Bill, 2022.
While the bill states that the if a person has not been previously convicted of an offence under any law and is released without trial or is discharged or acquitted by the court, then all the measurements of such a person shall be destroyed from the records. On the other hand, the permit to make and store multiple copies of the measurements by various law enforcement agencies would the nullify the benefit of deletion of data when the person is finally acquitted or released. Thus, once a person’s measurements are entered into the system, it is most likely that it would stay there for his life time. This could also result in harassment of the innocent persons, especially those who are socially and economically weak.
VIOLATION OF FUNDAMENTAL RIGHTS
This bill cross swords with the right to Privacy, which was reaffirmed as a fundamental right under Article 21 of the constitution in the KS Puttaswamy vs UOI. The measurements that are directed to be taken under this bill forms a part of the personal data of an individual and is thus protected under right to privacy. Privacy is to be understood as the ultimate expression of a person’s sanctity. The supreme court while affirming its position taken the People's Union for Civil Liberties vs UOI case held that violation of privacy is to be subject to the test of reasonableness under Article 14 of the constitution. Therefore, such intrusions must be on just, fair and reasonable basis.
As the bill mandates any person to give his measurements to establish a sufficient nexus between the crime and the criminals, it would also violate article 20(3) of the constitution, that protects an accused person to be compelled to be a witness against himself.
In the case of Selvi vs State of Karnataka the court ruled that the neuroscientific investigative techniques violated Article 21 and 20(3). It further went on to state that Article 20(3) has to be read after considering various dimensions of personal liberty under Article 21, such as fair trial and substantive due process. The present bill does not clarify whether brain mapping and narco-analysis would constitute a part of the biological samples. And whether the individuals would be entitled to refuse collection of such samples.
In Maneka Gandhi vs UOI the supreme court held that the right against self-incrimination should be construed with due regard for inter relationship between rights, such as right to fair trial and substantive due process which is essential for personal liberty under Article 21. Therefore, the Criminal Procedure (Identification) Bill, 2022 poses a grave threat to the Fundamental rights which are intrinsic for preservation of individual liberty and establishment of a true welfare state.
At present India does not have a comprehensive Data Protection law to protect the personal data or information. While there are various provisions of IT Act, 2000 provide for matter dealing with cybercrime and e-commerce, it does not specifically address the privacy issues. The parliament is yet to pass the Personal Data Protection Bill, 2021 which aims to protect the rights of the individuals whose data are processed, its usage, remedies for unauthorized processing of data, etc. Therefore, the passing of the Criminal procedure identification Bill,2022 in the absence of an efficient and comprehensive legislation which deals with Data protection poses a grave threat to the fundamental rights under Articles 14, 20(3), and 21 of the constitution.
Currently we witness the opposition demanding that the bill be sent to the standing committee for further examination. They are of the view that the bill was passed with the intend to intimidate the people as it poses a great threat to their freedom and personal liberty. They also assert that the bill would give sweeping powers to the government, with fewer checks and balances, thus making several provisions of the bill, unconstitutional. On the other hand, the ruling government justifies its stance on the passing of the bill by stating that it would not only fill in the gaps left by the Identifications of Prisoners Act,1920 but would also broaden the scope of the collection of evidence, leading to higher conviction rates, which is the need of the hour.
Therefore, we can rightly conclude that there is a dire need for concretizations of the data protection laws and necessary safeguards to guarantee the protection of an individual’s privacy and liberty, so that the true intent with which the Criminal procedure (Identification) Bill,2022 was passed can be achieved.