A critique prepared and issued by All India Lawyers’ Association For Justice – AILAJ, of The Criminal Procedure (Identification) Bill, 2022 passed by the Lok Sabha on 04.04.2022 and Rajya Sabha on 06.04.2022, which is now awaiting presidential assent. The Bill repeals and replaces the Identification of Prisoners Act, 1920.
It may be remembered that the State has often used the wheels of criminal laws and preventive detention as a punitive measure against dissenters, who will now be compelled to provide their “measurements” to aid the creation of a profile of each person. A perusal of parliamentary proceedings shows that the Bill was passed in a most unceremonious manner, without so much as a reference of the Bill to a Standing Committee, despite its significant ramifications on the rights of individuals and vehement concerns voiced by the Opposition in the Parliament. Without any safeguards in place to guard such sensitive data, the State is embarking on an exercise of profiling individuals, without regard for the fundamental right to privacy.
The Bill has been rushed through the Parliament without any public consultation, and severely undermines the privacy and equality of citizens, coming on the heels of several smart policing efforts that deploy facial recognition technology, surveillance technology, and big data analysis. We demand that the Bill be withdrawn in toto, and the Union Government make sufficient efforts to protect the privacy of all individuals in the country.
The Criminal Procedure (Identification) Bill, 2022 proposes the following introductions to the criminal justice system:
- The stated objective of the Bill is to improve the gathering of sufficient legally admissible evidence to establish the crime of accused persons to aid the investigative agency and to assist investigative agencies through the “unique identification of a person involved in any crime”, to aid identification and investigation in criminal matters and prevent crimes.
- Any person who has been convicted, ordered to give security for good behavior or maintaining peace under Section 117, 107, 108, 109, or 110 of the Code of Criminal Procedure, 1973 (“CrPC”), or persons detained under preventive detention laws, shall allow her measurements to be taken by a police/prison officer in such manner to be prescribed by the Central/State Government.
- Measurements is broadly defined, to include finger-impressions, palm-print impressions, foot-print impressions, photographs, iris and retina scan, physical, biological samples and their analysis, behavioral attributes including signatures, handwriting, or any other examination referred to in Sections 53 (examination of accused by medical practitioner at the request of police officer) or 53A (examination of a person accused of rape by medial practitioner) of the CrPC.
- Persons arrested for offences committed against women, children, or offences punishable with imprisonment for a period not less than seven years, will be obliged to allow taking of her biological samples, but other persons arrested for offences other than those specified will not be obliged to allow the taking of their biological samples.
- The National Crime Records Bureau (“NCRB”) shall collect the record of such measurements, store, preserve, destroy them, process records with relevant crime and criminal records, and share and disseminate such records with any law enforcement agency.
- These records will be maintained in digital or electronic form for 75 years from the date of collection.
- The records of any person not previously convicted and who is released without trial, discharged, or acquitted, after exhausting all legal remedies, shall be destroyed unless ordered otherwise by the Magistrate for reasons recorded in writing.
- Power is vested with the State Government/Union Territory Administration to notify an appropriate agency to collect, preserve and share the measurements in their jurisdiction.
- The Magistrate is vested with the power to direct any person to give measurements, and the person shall allow the measurements to be taken in conformity with these directions. If any person resists or refuses to allow such taking of measurements, it is lawful for the police officer or prison officer to take such measurements in such manner as prescribed. Resistance or refusal is deemed to be an offence under Section 186 of the Indian Penal Code, 1860 (“IPC”) (obstructing public servant in discharge of public functions punishable with imprisonment of either description which may extend to 3 months, or fine upto Rs. 500/- or both).
- The Bill has a bar on any suit or proceedings against any person for anything done under the enactment in good faith.
- The manner of taking measurements, collection, storage, preservation, sharing, dissemination, destruction, disposal, has been entirely left to delegated legislation.
In our considered view, the Bill is deeply problematic and unconstitutional, for several reasons:
- The Bill is manifestly arbitrary: The unfettered powers to collect “measurements” falls foul of the right to equality in Article 14 of the Constitution. At the very outset, “measurements” has been broadly defined, leaving it open to the investigation agencies to collect all biological samples and alleged “behavioral attributes”. It is trite law that a broad and vaguely worded, disproportionate and excessive, provision harks against the right to equality as articulated by the Supreme Court in Shayara Bano v. Union of India (2017) 9 SCC 1. There is no requirement for the reasons for a particular type of measurement being taken to be disclosed, and further, compelling even those merely arrested without conviction, or merely directed by the Magistrate to give their measurements, is arbitrary in nature. The Bill grants indiscriminate powers to the investigative agencies and denies agency to persons over their own body as refusing or resisting to give measurements is made an offence. Thus, in toto, the Bill is manifestly arbitrary and fails the muster of Article 14.
- Excessive delegation and discretion: The Bill grants wide discretion to police and prison authorities and Magistrates to compel persons to give their measurements, and leaves wide discretion to these authorities to exercise unbridled powers to collect a persons’ measurements. Further, the manner of taking measurements, their storage, dissemination and destruction has been left to delegation legislation, when in-fact these safeguards must be specified in the scheme of the enactment in order for them to be constitutionally sound. Shockingly, the Bill gives the power to the police/prison officer to take measurements of persons who resist/refuse to give measurements in a manner to be prescribed by rules. It is unclear in what manner a person will be compelled to give their measurements despite their lack of consent.
- Lack of reasonable classification: In order for a legislation to pass the test of Article 14, it must be a reasonable classification which creates two classes of persons based on an intelligible differentia which has a rational nexus with the object sought to be achieved by the legislation and should not be manifestly arbitrary. The Bill creates an unreasonable classification of persons, as measurements will mandatorily be given by persons arrested for offences punishable with 7 years or more of imprisonment or offences against women/children, but other persons arrested will not be compelled to give their measurements. This distinction between these two classes of arrested persons is entirely artificial, without any real or apparent connection to the object of the enactment, viz, to aid investigations in criminal matters.
- Violation of the right to privacy: The right to privacy has been unambiguously declared to be a part of the right to life under Article 21 of the Constitution in Justice KS Puttaswamy v. Union of India AIR 2017 SC 4161. In order for a measure to restrict this right to privacy, it must pass the test the proportionality as enumerated in the judgment. It must have a legitimate aim, the means utilized must be suitable to the legitimate aim, must be necessary for achieving the State’s legitimate aim, and must balance the violation of the right v. the object sought to be achieved. The Bill squarely fails the test of proportionality, as the means deployed are wholly unnecessary and disproportionate to the object of the enactment, creates a profile of individuals treating every person as a potential criminal, does not have a limiting purpose and a limited life for the data, and stores the records for a shocking period of 75 years. Without any procedural safeguards either, the Bill enables the establishment of a surveillance state, in complete violation of the right to privacy of persons.
- Violation of the right against self-incrimination: The Bill, by compelling persons to provide their measurements against their will, and collecting alleged behavioral attributes which are not scientifically proven or sound manners of impressing the guilt of a person, is in violation of the right against self-incrimination.
- Creation of a surveillance state: Decades of analyses of criminal investigations have exposed the biased nature of investigations, discriminatory practices by the police, and criminalizing of vulnerable communities under the garb of scientific investigations. The Bill enables the creation of profiles of individuals, treating every person as a potential criminal. It is evident that without proper procedural safeguards, without a data protection scheme, and with unguided powers to the NCRB to share this data (even entrusting the storage of data to an agency to be designated by the Government), will further enable discrimination against vulnerable communities who are already criminalized and left to the whims of the criminal justice system. There is also no clear process for persons to seek destruction of this data, leaving it entirely in the hands of the State. Authorities under the Bill are also vested with the power to compel a person to give measurements, making it a punishable offence for refusing or resisting to give measurements.
- Reversal of the presumption of innocence: No accused is guilty just by virtue of having been accused of a crime. The presumption of innocence inuring in favour of the accused stands violated by the mandatory profiling. There is also an element of stigmatisation that cannot be ignored.
It may be remembered that the State has often used the wheels of criminal laws and preventive detention as a punitive measure against dissenters, who will now be compelled to provide their “measurements” to aid the creation of a profile of each person. A perusal of parliamentary proceedings shows that the Bill was passed in a most unceremonious manner, without so much as a reference of the Bill to a Standing Committee, despite its significant ramifications on the rights of individuals and vehement concerns voiced by the Opposition in the Parliament. Without any safeguards in place to guard such sensitive data, the State is embarking on an exercise of profiling individuals, without regard for the fundamental right to privacy. The Bill has been rushed through the Parliament without any public consultation, and severely undermines the privacy and equality of citizens, coming on the heels of several smart policing efforts that deploy facial recognition technology, surveillance technology, and big data analysis. We demand that the Bill be withdrawn in toto, and the Union Government make sufficient efforts to protect the privacy of all individuals in the country.