As the Criminal Procedure (Identification) Act, 2022 Comes into Effect, Its Lack of Safeguards is of Concern

A scrutiny of the Criminal Procedure (Identification) Act, 2022 shows while the Act is intended to make the criminal justice system efficient, the downsides of the implementation of the Act are inescapable. 

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The recently passed Criminal Procedure (Identification) Act, 2022 came into effect on August 4. The act has come under deep scrutiny and criticism from the people, with a PIL being filed in the Delhi High Court by advocate Harshit Goel for the judicial review of various sections of the Act, claiming them to be prima facie unconstitutional and violative of the rights of individuals. Even though the PIL was opposed on the ground that the vires of a statute cannot be challenged in public interest litigation, the bench comprising the then Acting Chief Justice, Vipin Sanghi and Justice Navin Chawla, emphasised that the matter requires consideration and listed it for hearing on November 15.

Also read: Decoding the Criminal Procedure (Identification), 2022

The genesis

The Criminal Procedure (Identification) Act, 2022 seeks to repeal the erstwhile Identification of Prisoners Act, 1920, which allowed the police to extract basic identifiable information about the convicts and detainees. With advancement in technology, the provisions of the original Act seemed to be obsolete, and the need for a new act supporting the requirements of the modern investigation was felt. This was also reiterated by the Law Commission of India in 1980 while examining the 1920 act, wherein it highlighted the need to revise the Act in order to bring it at par with modern investigation procedures. For that reason, the Criminal Procedure (Identification) Bill, 2022 was introduced in the Lok Sabha this March and finally got passed in the Rajya Sabha on April 6.

The Act’s aims

The prime objective of the Act is to empower and authorise the law enforcement agencies to gather and analyse the physical and biological samples of convicts and “other persons” for the purpose of identification and efficient investigation of criminal matters. The Act significantly expands the scope of data that can be collected, from whom can such data be collected, and officials authorised to collect such data.

“The Act states that those arrested for committing offences against a woman or a child or offences carrying a minimum of seven years of imprisonment can be forced to give biological samples, while all arrestees may be compelled to give measurements other than biological samples, which clearly bears no intelligible differentia and no rational nexus can be established between this classification and the object of the Act.

The Act allows police officials and other prison authorities to collect, store, and analyse physical and biological samples, including the retina and iris scans. The scope of data that can be collected has been expanded to include: Biological samples, behavioural attributes, and examinations under sections 53 and 53A of CrPC.

The measurements can now be collected from convicts or detainees of “any offence”, those detained under any preventive detention law, and “any person” on the orders of the magistrate to aid the investigation. Those arrested for committing offences against a woman or a child or offences carrying a minimum of 7 years of imprisonment can also be forced to give biological samples.

“The Act permits the collection of measurements from any person convicted or arrested for “any offence” and gives the magistrate the power to order the collection of measurements from “any person” to aid the investigation, thus conferring sweeping powers to the authorities having ample scope of misuse for various socio-political reasons.

Those empowered to collect such data include an officer in charge of a police station, or of rank head constable or above, and a Head warden of a prison. In addition to that, a metropolitan magistrate or judicial magistrate of first-class can also order the collection of data and the data so collected will be handled by the National Crime Records Bureau (‘NCRB’) and will be preserved in digital or electronic form for at least 75 years.

Refusal to give the measurements will amount to an offence under Section 186 of the IPC for obstructing a public servant from doing his duties. However, no suit will lie against any person for anything done or intended to be done in the Act under the garb of “good faith”. 

A commendable provision of the Act includes the destruction of records if given by a person not previously convicted of an offence punishable under any law with imprisonment, got released without trial or acquitted by the court.

Also Read: Unravelling concerns over the Criminal Procedure (Identification) Bill, 2022

The Act carries the legitimate purpose of making provisions for the use of modern techniques in investigation and bringing the original Act in sync with the needs of present-day criminal investigation procedures in order to help and ease the process of taking measurements for the investigating agencies and make the investigation of crime more efficient with better conviction rates.

Valid concerns

However, there are certain key fallouts owing to which the Act has come into the limelight and has been critiqued widely.

The Act is primarily violative of Article 14 of the Constitution, which talks about equality before the law by failing the reasonable classification test established by the Supreme court in State of West Bengal v. Anwar Ali. The Act states that those arrested for committing offences against a woman or a child or offences carrying a minimum of seven years of imprisonment can be forced to give biological samples, while all arrestees may be compelled to give measurements other than biological samples, which clearly bears no intelligible differentia and no rational nexus can be established between this classification and the object of the Act.

“Considering the sensitive nature of measurements that can be collected under the Act, the need is to incorporate other safeguards, which include but are not limited to passing the long-pending Data Protection Bill and implementing something in line with E.U.’s General Data Protection Regulation (GDPR).

Section 6(2) of the Act makes the refusal to give measurements an offence under Section 186 of the IPC, and Section 3 makes it implied for the authorities to use force for the collection of biological samples (the scope of which is undefined) are also contravening Article 20(3) of the Constitution which provides for the right against self-incrimination by taking away the element of consent while taking measurements and having the potential to be used as evidence against the accused himself in the court of law.

The Supreme court, while recognising the Right to privacy as a fundamental right under Article 21 in K.S. Puttaswamy v. Union of India also laid down guidelines for any law that intends to violate this right, which includes having a legitimate goal, rational connection, necessity, and balancing of rights. The Act has significantly expanded the scope of data that can be collected, and that constitutes personal information of individuals protected under Article 21; while it does have a legitimate goal of bringing efficiency to the criminal justice system, it fails to fulfil the other three requirements and is thus violative of Article 21.

The Act permits the collection of measurements from any person convicted or arrested for “any offence” and gives the magistrate the power to order the collection of measurements from “any person” to aid the investigation, thus conferring sweeping powers to the authorities having ample scope of misuse for various socio-political reasons. Also, with the use of ambiguous terms like Behavioural attributes and biological samples, which can also include using the banned techniques of narco-analysis and brain-mapping, the Act leaves the construction of such data at the helm of the authorities, which poses a considerable threat to the rights of such individuals from whom the data is to be collected.

The Act, while expanding the scope of individuals from whom measurements can be collected, leaves the door open for targeting specific individuals for various political reasons. The expansive provisions of the Act can be used as a surveillance agent by the authorities against any individual, and the sensitive information collected can be illegitimately used for targeting the individual in various ways possible and without having any appropriate safeguard against the misuse of such data, the Act raises serious concerns about the rights of not just convicts and arrestees but everyone in general.

Also Read: The Criminal Procedure (Identification) Act, 2022 violated various constitutional mandates

Safeguards required

Considering the sensitive nature of measurements that can be collected under the Act, the need is to incorporate other safeguards, which include but are not limited to passing the long-pending Data Protection Bill and implementing something in line with E.U.’s General Data Protection Regulation (GDPR) to create an all-encompassing regulatory framework for the appropriate and legitimate use of data collected under the Act. At this juncture, the need is to pay heed to one of the comments of the Law Commission of India’s report while examining the 1920 Act wherein it highlighted the need to strike a balance between the rights of an individual and the need for protection and punishment of crime in the interests of the society, which obviously is not an easy task and has to be fulfilled with great difficulties.

The author is a second-year student at NALSAR University of Law.