The Untold Story of How the Criminal Identification Act is failing witness and Protecting Criminals
The Identification of Prisoners Act of 1920 (IPA), which had been repealed in
favor of the Criminal Procedure (Identification) Act (CPIA), included new
revisions and methods for dealing with changing circumstances. The consideration
will manifest or be recognized in the various circumstances brought about by
technological advancements in criminal behavior patterns. The document provides
an excellent analysis of the individuals or officials who would be in charge of
the efficient gathering of information and proof related to the crimes
committed, as well as describing what types of information and other
qualifications deal with the Criminal Identification Act.
Moreover, this paper draws a line of distinction between both the acts, i.e., the CPIA of 2022 and the IPA of 1920, with regard to the nature of the data that has been permitted to be collected, the persons whose data may be collected, and the persons who may require or direct the collection of data. Furthermore, this paper exaggerates the significance of the criminal identification act, 2022, using the analogy of how Indian legislators drafted and adopted the Identification of Prisoners Act 1920 (IPA) and how it changed the approach and meaning of "measurements" and "data" collected from suspected persons in violation of their privacy and fundamental rights.
Aside from that, the research identifies a few stumbling blocks or challenges that invalidate the validity or reasonableness of provisions of Indian law and the Indian constitution, such as Conflict with the right against self-incrimination, limitation of structural or infrastructural collection and maintenance of records, and many other clashes and unexplained terms that have mentioned in Criminal Identification Act
Statement Of Objects And Reasons
"The object of this bill is to provide legal authority for the taking of measurements, finger impressions, footprints, and photographs of persons convicted of, or arrested in connection with, certain offenses. The value of finger impressions and photographs as agents in the detection of crime and identification of criminals is well known and modern developments in England and other European countries render it unnecessary to enlarge upon the need for the proposed legislation."
Objective Of The Act
An act to authorize for taking measurements of convicts and other persons for the purpose of identification and investigation in criminal matters and to preserve records and for matters connected therewith and incidental thereto.
Introduction
The Criminal Procedure (Identification) Act (CPIA), received the assent of the President of India on 18th April 2022, amid the high-intensity protest by the opposition. It was passed by both houses of Parliament on 4th April 6, respectively, which was introduced in lok sabha on March 28, 2022. The opposition was demanding that it should be referred to the Parliamentary Standing Committee but the government turned down the demand of the opposition. This act replaced the 102-year-old Identification of Prisoners Act 1920 (IPA).[1] This act has come up with some big amendments. This act expands the scope of measurement to be taken of convicts and arrested persons and other persons such as habitual offenders.
The CPIA has provisions related to:
Under both the act, (Identification of Prisoners Act 1920 and Criminal Procedure Act 2022), resistance and refusal to give data are punishable under the act[2]. The police will be allowed to collect, preserve and analyze the physical and biological samples including the retina and iris scan of the convicts and arrested persons, according to the criminal procedure Act, 2022[3], whereas the IPA, 1920 allowed only the sample of finger and footprint of the convicted and arrested person[4]. However, the CPIA Act has met with protest and resistance from both, Opposition[5] and the legal fraternity[6] over the violations of privacy and fundamental rights of the convicted and arrested persons.
Background of the Act
The Criminal Procedure Identification Act, of 2022 repealed the Identification of Prisoners Act, of 1920, so the history has its roots back in the 18th century. IPA, 1920 allowed the police officer to collect the identification (fingerprint & footprint) of the convicted and arrested person. Under this act, the Magistrate also had the power to order measurements and photographs of the convicts to be taken in order to aid in the investigation process.
This is apparent even in the 102 years act that on acquittal, the data which was collected will be destroyed by following due procedure. From the script of the act, this is lucid that the objective of the act was to ensure rapid and correct investigation. Over the period of time, the technology has been revamped, which can be used in criminal investigation, and also the modus operandi of doing crime has also been changed, so it was very necessary to make alterations in the IPA, 1920 and this led to the introduction of the Criminal Procedure (Identification) Act, 2022.
For example, The DNA Technology (Use and Application) Bill, 2019,[7] pending in Lok Sabha, brings forth the framework for using DNA technology to collect data.[8] In 1980, the Law Commission of India while examining the 1920 Act, noted that it is now pertinent to revise the 1920 Act with modern tools and technology. In 2003 the Expert Committee on Reforms of Criminal Justice which was chaired by Justice V. S. Malimath[9] recommended that the 1920 act should be amended by empowering the Magistrates to collect the data such as blood samples for DNA, hair, saliva, and semen.
With this view, the Criminal Procedure (Identification) Bill, was introduced in lok sabha on March 28, 2022, and passed by both houses of Parliament on 4th April and 6th April respectively.
Features/ credentials of the Act
The Act expands to certain criteria like:- The type of data that may be collected, Persons from whom such data may be collected, and the authority that may authorize such collection. It also provides for the data to be stored in a central database.
The important features of the act are mentioned below:
The distinction between the 1920 Act and Criminal Procedure Identification Act, 2022.
Relevance of this Act in the contemporary world.
102 years back in 1920, just after the Non-Cooperation Movement, amid the peak of nationalism, the British Government brought in the Identification of Prisoners Act 1920 to increase their control by expanding the scope of surveillance on the Indians. Law enforcement authorities were empowered to collect the data such as photographs, footprints, and fingerprints of the convicted person (and sometimes even not convicted person) and made rules for their storage and destruction.
Therefore, it is ironic to say that post 75 years of the independence of India, the government has come up with a fresh piece of legislation, to replace the 102 years old prisoners act, with more personal data by expanding the boundary of the "measurements" and with no safeguard to privacy. The CPIA, 2022 which was passed in the end of March, stated the objectives as set out in the "Objective and Reasons" that the intention of the makers is to update the law with the new technique in measurement, and identification that has evolved over the period of time. And for that, they have expanded the contour of the measurement which now includes fingerprints, footprints, palm prints, semen, iris, and behavioral attributes which include signatures.
Problems arising in Criminal identification act
Despite being focused on technological advancements in the investigation procedure of a crime, the criminal identification act suffers from certain major problematic concerns that can question its validity and execution.
Firstly, this act, neither mentioned any framework nor defined any procedure that how the collected measurements or data would be used for analysis and then how as to be used for the investigation with regard to that crime. Thus, the word 'analysis[18]; which has been used with regard to measurement, is undefined which becomes a loop hole because there is no assurance in relation as to how these collected measurements could be analyzed and consequently what data can be gathered from such analysis of those measurements. Therefore, the ambit of said act only concerned and exhausted the collection of the measurements for the identification and inspection purposes.
The other issue of concern is in relation to structural capacity as collection and maintenance of measurements for records. The CPIA, 2022 states that the National Crime Records Bureau (NCRB) shall be authorized for the collection and management of records of measurements in congruence with the State Government or Union Territory Administration or any other law enforcement agencies[19]. However, NCRB is established as depository of informations and data of crime and criminals[20]. It does not have any department which can be responsible for the collection of such measurements including biological samples.
Although, The Central and State Forensic Science Laboratories which are less in quantity would be required to play and become responsible to perform their substantial role. Besides, this act enlarges the scope of person which led to creation of functional difficulties in assembling and collection of such measurements along with their analysis and preservation for 75 years in the form of data. Whereas, India does not have any foundation with regards to data protection by the government.
The Bombay High Court in Jitendra v. State of Maharashtra[21] held that, it becomes needful for laboratories to make sure the quality control in biological samples along with their analysis and administer them with high standard.
The other issue of concern is with the nature of the measurements that have been collected which may sometimes make the identification and the investigation embroiled. In the case of Puttaswamy v. Union of India, it was noticed that biometrics technology has detect only 99.76% not 100% accuracy[22]. Subsequently the Court held that this error of percentage is very minute but when such error has been seen from the perspective of the large population, this failure in itself becomes a magnificent static. Besides, the court also observed that the changing character of biological models is like the formation of fingerprints of an individual because he is getting old.
Thus, when such measurements including biological data have been kept for a longer time as records after the analysis of the same. Then later on, in some cases there may be chances that such measurements had changed or left its originality which causes unessential victimization of unimpeachable individuals. Thus this pattern of collection of such measurements may be determined as a black hole for the inspection and investigation of a crime.
The Criminal Identification Act, 2022 empowers for collection of certain recognizable information of the persons even for the investigation of the crime or an offense that has committed. The identifiable information or data of the persons which are specified in the said law is of personal nature, consequently that personal data covered under the privacy of a person and would be protected under fundamental rights i.e., Right to Privacy which recently has been recognisedzed as fundamental rights under article 21 by the Supreme court[23]. Probably, there may be certain conditions and cases where the personal information of the individual can be infringed which is of course contrary to fundamental rights.
Apart from all these loopholes, Criminal identification acts also have some other problems like: - In the context of biometric technologies, abuse has already been documented � for example, twin reports by Georgetown Law[24] documented widespread misuse of facial recognition systems, bringing likely accuracy in some cases near zero. Yet, the new Act still relies on collecting the said unreliable biometric data and use it against the persons or detainees.
Conflict with the right against self-incrimination
In India, this right is recognized as an essential attribute inscribed in article 20(3) of the Indian Constitution and by virtue of section 161(2) of the CRPC, 1973. 161(2) of the CRPC requires that every person being questioned must respond justly to the question posted to him[25]. But within the clause itself, there is an exception to this, that if answering the question can lead to the incrimination of that person, then he is not bound to answer those questions. But if it appears that there is no possibility to make guilt probable then the person is bound to answer the question.
Section 2(1)(b) of CIPA, includes finger impressions, palm-print impressions, footprint impressions, photographs, iris and retina scans, physical and biological samples and their analysis, behavioral attributes including signatures and handwriting, or any other examination referred to in Section 53 or Section 53A of the Code of Criminal Procedure (CrPC), 1973. This provision is quite ambiguous and subject to misuse as it does not define what a biological sample means and may be expanded to Narco analysis, Polygraph test, and Brain Electrical Activation Profile.
Legal Scrutiny of this Act
Any act or law has to go through the prism of the legal world for the legal scrutiny so that we have filtered provisions of the law or act ensuring that no provisions would violate the fundamental rights of the citizens.
This particular act gives wide power into the hands of the State and its police authority during the investigation that is under process. This act empowered the investigation agency to collect, analyze, and storage of the biometric and personal data such as retina scans, iris scans, fingerprints etc., of any person arrested by the executive wing of the state which includes the convicted person.
The term "any person" gives a wider scope into the hands of the investigation agencies, because it does not specify lucidly who are those people which will come under the umbrella of this act.
And what makes it the most violative of a fundamental right is that according to section 6 of the act[26] if any person refuses to give personal data to the investigative agencies then that person will be liable under section 186 of the I.P.C. This provision of the act not only encroaches upon the individuality of the person but also violates the right to a fair trial under Article 21 of the Constitution.
There are some provisions in this act that do not pertain to the new scientific evolution over the century of what "measurement" can be taken from the body.
Firstly, this act expands the ambit of the law's operations to arrest the person for any offense, including persons arrested under preventive detention laws. In the current times, it is an apparent and undisputed fact that there are abuses of the police power of arrest and more abuses in preventive detention laws.[27] For instance, in this act the word that is mention is "may" and not "shall"[28] which is basically giving the wide power in the hands of the administration which can be used against the convicted person to give measurement against the will or consent. If we take it from the other side, then it can be traced that if the convicted person is not obliged to give data under the guise of word "may", but then it is punishable under section 6 of the CIPA Act.[29] Also it can be inferred from the language of the Section 4 and 5 of the act that a person is not obliged to
Second, the act has the provision of collection of the data of the convicted individuals for 75 years[30]. It means the data will be there in the hands of law enforcement agencies for the lifetime of the individual. There is no answer for the question of how this permanent collection of the data will lead to help in the prevention or investigation of the crime? This also raises serious concerns over data protection and privacy rights of individuals.
Third, the Act has the provision that NCRB (National Crime Record Bureau) is empowered to collect the data and then disseminate the personal data of the convicted person to any law enforcement agency.[31] Sharing and disseminating personal information is against the principle of data protection.[32] Also the principle of "purpose limitation"[33] states that even where the data collection is legally justified, data that has been collected should be used for specific purpose and also for specific period, not for anything else. But according to this new act the data collected can be used against any crime,[34] which is contradictory to the "purpose limitation".
As per the Section 3 of the act[35], the police officer not below the rank of the Head constable and prison officer not below the rank of Head Warder has the authority for collection of the data under their management without any specified manner or prescribed manner, and gives an open hand to the investigation authorities to do anything to collect the data. Such a wide power into the hands of the State and its investigation agencies creates a doubt that whether the data collected is fairly done or not?
Moreover, the Apex Court in landmark case Sunil Batra vs Delhi Administration 1979[36], clearly stated that when a person is in jail, the jail authorities have no power to punish, torture or to discriminate amongst them without the permission of the court, and person in jail still has the right to life and personal liberty under Article 21 of the Constitution.
What needs to be understood here is that not all crimes require collection of personal data of convicts, it is only the specific cases where investigation requires the personal data of a convicted or arrested person.
Conclusion
The Criminal Procedure (identification) bill was passed by both the houses of the parliament that resulted in the enactment of a welcome piece of legislation i.e., Criminal Procedure (identification) Act, 2022. The said act repealed the existing Identification of Prisoners Act 1920. The new act has come up with some big amendments in the existing law. The new act empowers the concerned central and state government authorities for taking measurements of the detained or arrested persons for the investigation of a crime that has been committed or likely to be committed.
The new act has broadened the scope of measurements, though in the earlier act, restricted the scope of measurements for the purpose of investigation of a crime. Moreover, the new act increased the 'arena of persons or authorities who are allowed to take the collections and maintain the records of data and measurements after analysis which are required for the identification in a criminal case.
Subsequently it could be seen, the new act has many loopholes, some of them can be recognised directly and some others would be recognised in due course of time, when this act executes and it is brought for legal scrutiny before courts for being in conflict with the fundamental rights� mainly right to privacy and equality of an individual. It becomes important and necessary that this act has to scrutinize the technology aspect with regard to investigation and collection of measurements because, nowadays criminals try to make themselves adept in technology to keep themselves away from the criminal liability.
To make this new act more effective and reasonable, it is mainly needed that the term which creates chaos or not defined properly in a reasonable manner and that will sound vague, should be corrected. Moreover, the allied frameworks whose application would be necessary for its execution has to be clearly defined, like the Government should be concentrated on the Data Protection Bill in order to protect and safeguard the general public's interests.
End-Notes:
Moreover, this paper draws a line of distinction between both the acts, i.e., the CPIA of 2022 and the IPA of 1920, with regard to the nature of the data that has been permitted to be collected, the persons whose data may be collected, and the persons who may require or direct the collection of data. Furthermore, this paper exaggerates the significance of the criminal identification act, 2022, using the analogy of how Indian legislators drafted and adopted the Identification of Prisoners Act 1920 (IPA) and how it changed the approach and meaning of "measurements" and "data" collected from suspected persons in violation of their privacy and fundamental rights.
Aside from that, the research identifies a few stumbling blocks or challenges that invalidate the validity or reasonableness of provisions of Indian law and the Indian constitution, such as Conflict with the right against self-incrimination, limitation of structural or infrastructural collection and maintenance of records, and many other clashes and unexplained terms that have mentioned in Criminal Identification Act
Statement Of Objects And Reasons
"The object of this bill is to provide legal authority for the taking of measurements, finger impressions, footprints, and photographs of persons convicted of, or arrested in connection with, certain offenses. The value of finger impressions and photographs as agents in the detection of crime and identification of criminals is well known and modern developments in England and other European countries render it unnecessary to enlarge upon the need for the proposed legislation."
Objective Of The Act
An act to authorize for taking measurements of convicts and other persons for the purpose of identification and investigation in criminal matters and to preserve records and for matters connected therewith and incidental thereto.
Introduction
The Criminal Procedure (Identification) Act (CPIA), received the assent of the President of India on 18th April 2022, amid the high-intensity protest by the opposition. It was passed by both houses of Parliament on 4th April 6, respectively, which was introduced in lok sabha on March 28, 2022. The opposition was demanding that it should be referred to the Parliamentary Standing Committee but the government turned down the demand of the opposition. This act replaced the 102-year-old Identification of Prisoners Act 1920 (IPA).[1] This act has come up with some big amendments. This act expands the scope of measurement to be taken of convicts and arrested persons and other persons such as habitual offenders.
The CPIA has provisions related to:
- Whose data will be collected?
- who will collect the data?
- who will preserve the data?
Under both the act, (Identification of Prisoners Act 1920 and Criminal Procedure Act 2022), resistance and refusal to give data are punishable under the act[2]. The police will be allowed to collect, preserve and analyze the physical and biological samples including the retina and iris scan of the convicts and arrested persons, according to the criminal procedure Act, 2022[3], whereas the IPA, 1920 allowed only the sample of finger and footprint of the convicted and arrested person[4]. However, the CPIA Act has met with protest and resistance from both, Opposition[5] and the legal fraternity[6] over the violations of privacy and fundamental rights of the convicted and arrested persons.
Background of the Act
The Criminal Procedure Identification Act, of 2022 repealed the Identification of Prisoners Act, of 1920, so the history has its roots back in the 18th century. IPA, 1920 allowed the police officer to collect the identification (fingerprint & footprint) of the convicted and arrested person. Under this act, the Magistrate also had the power to order measurements and photographs of the convicts to be taken in order to aid in the investigation process.
This is apparent even in the 102 years act that on acquittal, the data which was collected will be destroyed by following due procedure. From the script of the act, this is lucid that the objective of the act was to ensure rapid and correct investigation. Over the period of time, the technology has been revamped, which can be used in criminal investigation, and also the modus operandi of doing crime has also been changed, so it was very necessary to make alterations in the IPA, 1920 and this led to the introduction of the Criminal Procedure (Identification) Act, 2022.
For example, The DNA Technology (Use and Application) Bill, 2019,[7] pending in Lok Sabha, brings forth the framework for using DNA technology to collect data.[8] In 1980, the Law Commission of India while examining the 1920 Act, noted that it is now pertinent to revise the 1920 Act with modern tools and technology. In 2003 the Expert Committee on Reforms of Criminal Justice which was chaired by Justice V. S. Malimath[9] recommended that the 1920 act should be amended by empowering the Magistrates to collect the data such as blood samples for DNA, hair, saliva, and semen.
With this view, the Criminal Procedure (Identification) Bill, was introduced in lok sabha on March 28, 2022, and passed by both houses of Parliament on 4th April and 6th April respectively.
Features/ credentials of the Act
The Act expands to certain criteria like:- The type of data that may be collected, Persons from whom such data may be collected, and the authority that may authorize such collection. It also provides for the data to be stored in a central database.
The important features of the act are mentioned below:
- Type of data collected:
Under the existing law, the police can take finger impressions, footprint impressions of a limited category of convicted and unconvicted, and photographs on the order of the magistrate, but according to section 2(1)(b)[10] of the new law, will allow the police to take photographs, biological samples, and their analysis, behavioral attributes including signatures, handwriting, and examinations under section 53 and 53A of CRPC (includes blood, semen, hair samples, and swabs and analysis such as DNA profiling). It does not limit the measurements to those required for a specific investigation.
- Whose data may be collected:
Under the old act, data could be collected only for those convicted or arrested for offenses punishable with rigorous imprisonment of one year or more.
Under the new act, data can be collected from anyone who is convicted or arrested for any offense. However, biological samples may be taken forcibly only from persons arrested for offenses against a woman or a child, or if the offense carries a minimum of seven years imprisonment. Section 5 of the act also authorizes Magistrates to compel "any person" to give vital details for identification and investigation in criminal matters if the Magistrates is satisfied that it is necessary to do so[11]. It doesn't define "any persons", implying its ambit extends beyond convicts, arrested persons, or detainees.
The act also says that if a person resists giving information, the police can take it forcibly in a manner that may be prescribed by the executive later. The legislation awards limited power to refuse the collection of information[12].
Section 6(2) of the said act also states that if any person resists giving information then he would be guilty under Section 186 of the I.P.C.[13]
- Who will collect the data:
Under the IPA, 1920, a Magistrate may order data to be collected in order to aid the investigation of an offense. The new Act allows the head constable (which is a lower rank used in the new Act in comparison to the old act� where it was a sub-inspector), and head warden of a prison to take measurements[14].
- Retaining data:
The act allows the retaining of the data for 75 years[15]. The National Crime Records Bureau, which falls under the Union Ministry of Home Affairs, will collect, store, process, share and destroy the data[16]. The data would be deleted only on the final acquittal or discharge of a person arrested for an offense. Moreover, information about first-time offenders who are released or acquitted will be deleted after all legal remedies have been exhausted[17].
The distinction between the 1920 Act and Criminal Procedure Identification Act, 2022.
| IPA, 1920 |
Changes in CPIA, 2022 |
|
Data permitted to be collected |
|
| Fingerprint, Footprint, Palm print, Photographs | Samples expansion: (i) Biological samples and their analysis, (ii) behavioral attributes including signatures and handwriting, (iii) examination under sec 53 and 53(A) of Cr.PC(semen, blood, retina, iris, hair samples and swabs) |
|
Persons whose data may be collected |
|
|
|
|
Persons who may require/ direct collection of data |
|
| Investigating Officer, Officer in charge of police station, officer rank of sub-inspector or above. | Officer in charge of a police station, officer rank of head constable, or above. Besides this head warden of prison is also assigned for this under the new act. |
| Magistrates. | First class judicial magistrate or Metropolitan Magistrate (MM), in case of a person required to maintain good behavior and peace, the Executive Officer will be appointed. |
Relevance of this Act in the contemporary world.
102 years back in 1920, just after the Non-Cooperation Movement, amid the peak of nationalism, the British Government brought in the Identification of Prisoners Act 1920 to increase their control by expanding the scope of surveillance on the Indians. Law enforcement authorities were empowered to collect the data such as photographs, footprints, and fingerprints of the convicted person (and sometimes even not convicted person) and made rules for their storage and destruction.
Therefore, it is ironic to say that post 75 years of the independence of India, the government has come up with a fresh piece of legislation, to replace the 102 years old prisoners act, with more personal data by expanding the boundary of the "measurements" and with no safeguard to privacy. The CPIA, 2022 which was passed in the end of March, stated the objectives as set out in the "Objective and Reasons" that the intention of the makers is to update the law with the new technique in measurement, and identification that has evolved over the period of time. And for that, they have expanded the contour of the measurement which now includes fingerprints, footprints, palm prints, semen, iris, and behavioral attributes which include signatures.
Problems arising in Criminal identification act
Despite being focused on technological advancements in the investigation procedure of a crime, the criminal identification act suffers from certain major problematic concerns that can question its validity and execution.
Firstly, this act, neither mentioned any framework nor defined any procedure that how the collected measurements or data would be used for analysis and then how as to be used for the investigation with regard to that crime. Thus, the word 'analysis[18]; which has been used with regard to measurement, is undefined which becomes a loop hole because there is no assurance in relation as to how these collected measurements could be analyzed and consequently what data can be gathered from such analysis of those measurements. Therefore, the ambit of said act only concerned and exhausted the collection of the measurements for the identification and inspection purposes.
The other issue of concern is in relation to structural capacity as collection and maintenance of measurements for records. The CPIA, 2022 states that the National Crime Records Bureau (NCRB) shall be authorized for the collection and management of records of measurements in congruence with the State Government or Union Territory Administration or any other law enforcement agencies[19]. However, NCRB is established as depository of informations and data of crime and criminals[20]. It does not have any department which can be responsible for the collection of such measurements including biological samples.
Although, The Central and State Forensic Science Laboratories which are less in quantity would be required to play and become responsible to perform their substantial role. Besides, this act enlarges the scope of person which led to creation of functional difficulties in assembling and collection of such measurements along with their analysis and preservation for 75 years in the form of data. Whereas, India does not have any foundation with regards to data protection by the government.
The Bombay High Court in Jitendra v. State of Maharashtra[21] held that, it becomes needful for laboratories to make sure the quality control in biological samples along with their analysis and administer them with high standard.
The other issue of concern is with the nature of the measurements that have been collected which may sometimes make the identification and the investigation embroiled. In the case of Puttaswamy v. Union of India, it was noticed that biometrics technology has detect only 99.76% not 100% accuracy[22]. Subsequently the Court held that this error of percentage is very minute but when such error has been seen from the perspective of the large population, this failure in itself becomes a magnificent static. Besides, the court also observed that the changing character of biological models is like the formation of fingerprints of an individual because he is getting old.
Thus, when such measurements including biological data have been kept for a longer time as records after the analysis of the same. Then later on, in some cases there may be chances that such measurements had changed or left its originality which causes unessential victimization of unimpeachable individuals. Thus this pattern of collection of such measurements may be determined as a black hole for the inspection and investigation of a crime.
The Criminal Identification Act, 2022 empowers for collection of certain recognizable information of the persons even for the investigation of the crime or an offense that has committed. The identifiable information or data of the persons which are specified in the said law is of personal nature, consequently that personal data covered under the privacy of a person and would be protected under fundamental rights i.e., Right to Privacy which recently has been recognisedzed as fundamental rights under article 21 by the Supreme court[23]. Probably, there may be certain conditions and cases where the personal information of the individual can be infringed which is of course contrary to fundamental rights.
Apart from all these loopholes, Criminal identification acts also have some other problems like: - In the context of biometric technologies, abuse has already been documented � for example, twin reports by Georgetown Law[24] documented widespread misuse of facial recognition systems, bringing likely accuracy in some cases near zero. Yet, the new Act still relies on collecting the said unreliable biometric data and use it against the persons or detainees.
Conflict with the right against self-incrimination
In India, this right is recognized as an essential attribute inscribed in article 20(3) of the Indian Constitution and by virtue of section 161(2) of the CRPC, 1973. 161(2) of the CRPC requires that every person being questioned must respond justly to the question posted to him[25]. But within the clause itself, there is an exception to this, that if answering the question can lead to the incrimination of that person, then he is not bound to answer those questions. But if it appears that there is no possibility to make guilt probable then the person is bound to answer the question.
Section 2(1)(b) of CIPA, includes finger impressions, palm-print impressions, footprint impressions, photographs, iris and retina scans, physical and biological samples and their analysis, behavioral attributes including signatures and handwriting, or any other examination referred to in Section 53 or Section 53A of the Code of Criminal Procedure (CrPC), 1973. This provision is quite ambiguous and subject to misuse as it does not define what a biological sample means and may be expanded to Narco analysis, Polygraph test, and Brain Electrical Activation Profile.
Legal Scrutiny of this Act
Any act or law has to go through the prism of the legal world for the legal scrutiny so that we have filtered provisions of the law or act ensuring that no provisions would violate the fundamental rights of the citizens.
This particular act gives wide power into the hands of the State and its police authority during the investigation that is under process. This act empowered the investigation agency to collect, analyze, and storage of the biometric and personal data such as retina scans, iris scans, fingerprints etc., of any person arrested by the executive wing of the state which includes the convicted person.
The term "any person" gives a wider scope into the hands of the investigation agencies, because it does not specify lucidly who are those people which will come under the umbrella of this act.
And what makes it the most violative of a fundamental right is that according to section 6 of the act[26] if any person refuses to give personal data to the investigative agencies then that person will be liable under section 186 of the I.P.C. This provision of the act not only encroaches upon the individuality of the person but also violates the right to a fair trial under Article 21 of the Constitution.
There are some provisions in this act that do not pertain to the new scientific evolution over the century of what "measurement" can be taken from the body.
Firstly, this act expands the ambit of the law's operations to arrest the person for any offense, including persons arrested under preventive detention laws. In the current times, it is an apparent and undisputed fact that there are abuses of the police power of arrest and more abuses in preventive detention laws.[27] For instance, in this act the word that is mention is "may" and not "shall"[28] which is basically giving the wide power in the hands of the administration which can be used against the convicted person to give measurement against the will or consent. If we take it from the other side, then it can be traced that if the convicted person is not obliged to give data under the guise of word "may", but then it is punishable under section 6 of the CIPA Act.[29] Also it can be inferred from the language of the Section 4 and 5 of the act that a person is not obliged to
Second, the act has the provision of collection of the data of the convicted individuals for 75 years[30]. It means the data will be there in the hands of law enforcement agencies for the lifetime of the individual. There is no answer for the question of how this permanent collection of the data will lead to help in the prevention or investigation of the crime? This also raises serious concerns over data protection and privacy rights of individuals.
Third, the Act has the provision that NCRB (National Crime Record Bureau) is empowered to collect the data and then disseminate the personal data of the convicted person to any law enforcement agency.[31] Sharing and disseminating personal information is against the principle of data protection.[32] Also the principle of "purpose limitation"[33] states that even where the data collection is legally justified, data that has been collected should be used for specific purpose and also for specific period, not for anything else. But according to this new act the data collected can be used against any crime,[34] which is contradictory to the "purpose limitation".
As per the Section 3 of the act[35], the police officer not below the rank of the Head constable and prison officer not below the rank of Head Warder has the authority for collection of the data under their management without any specified manner or prescribed manner, and gives an open hand to the investigation authorities to do anything to collect the data. Such a wide power into the hands of the State and its investigation agencies creates a doubt that whether the data collected is fairly done or not?
Moreover, the Apex Court in landmark case Sunil Batra vs Delhi Administration 1979[36], clearly stated that when a person is in jail, the jail authorities have no power to punish, torture or to discriminate amongst them without the permission of the court, and person in jail still has the right to life and personal liberty under Article 21 of the Constitution.
What needs to be understood here is that not all crimes require collection of personal data of convicts, it is only the specific cases where investigation requires the personal data of a convicted or arrested person.
Conclusion
The Criminal Procedure (identification) bill was passed by both the houses of the parliament that resulted in the enactment of a welcome piece of legislation i.e., Criminal Procedure (identification) Act, 2022. The said act repealed the existing Identification of Prisoners Act 1920. The new act has come up with some big amendments in the existing law. The new act empowers the concerned central and state government authorities for taking measurements of the detained or arrested persons for the investigation of a crime that has been committed or likely to be committed.
The new act has broadened the scope of measurements, though in the earlier act, restricted the scope of measurements for the purpose of investigation of a crime. Moreover, the new act increased the 'arena of persons or authorities who are allowed to take the collections and maintain the records of data and measurements after analysis which are required for the identification in a criminal case.
Subsequently it could be seen, the new act has many loopholes, some of them can be recognised directly and some others would be recognised in due course of time, when this act executes and it is brought for legal scrutiny before courts for being in conflict with the fundamental rights� mainly right to privacy and equality of an individual. It becomes important and necessary that this act has to scrutinize the technology aspect with regard to investigation and collection of measurements because, nowadays criminals try to make themselves adept in technology to keep themselves away from the criminal liability.
To make this new act more effective and reasonable, it is mainly needed that the term which creates chaos or not defined properly in a reasonable manner and that will sound vague, should be corrected. Moreover, the allied frameworks whose application would be necessary for its execution has to be clearly defined, like the Government should be concentrated on the Data Protection Bill in order to protect and safeguard the general public's interests.
End-Notes:
- Identification of Prisoners Act, 1920 available at: https://legislative.gov.in/sites/default/files/A1920-33.pdf. Accessed 15 Dec. 2022.
- Section 6(2) : Resistance to or refusal to allow the taking of measurements under this Act shall be deemed to be an offense under section 186 of the Indian Penal Code.
- Section 2(b) : "measurements" includes 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 section 53 or section 53A of the Code of Criminal Procedure, 1973
- Section 2(a) : "measurements" include finger impressions and foot-print impressions;
- 'The Criminal Procedure (Identification) Bill: Opposition Slams It As "Unconstitutional, Direct Violation Of Fundamental Rights"' https://www.ndtv.com/india-news/the-criminal-procedure-identification-bill-opposition-slams-it-as-unconstitutional-direct-violation-of-fundamental-rights-2848083 accessed 15 December 2022
- 'A Critique of the Criminal Procedure (Identification) Bill, 2022 | OHRH' https://ohrh.law.ox.ac.uk/a-critique-of-the-criminal-procedure-identification-bill-2022/ accessed 15 December 2022
- "DNA Technology (Use and Application) Regulation Bill, 2019." 27 Jun. 2019, http://164.100.47.4/billstexts/lsbilltexts/asintroduced/128_%202019_LS_eng.pdf. Accessed 15 Dec. 2022.
- 'DNA Technology Bill Is Under Consideration, Data Banks to Be Set Up: Centre' https://thewire.in/government/dna-technology-bill-is-under-consideration-data-banks-to-be-set-up-centre accessed 15 December 2022
- "Committee on Reforms of Criminal Justice System." 31 Mar. 2003, https://www.mha.gov.in/sites/default/files/criminal_justice_system.pdf. Accessed 15 Dec. 2022.
- Criminal Identification (Procedure) Act, 2022 available at: https://egazette.nic.in/WriteReadData/2022/235184.pdf. Accessed 17 Dec. 2022
- Section 5: Where the Magistrate is satisfied that, for the purpose of any investigation or proceeding under the Code of Criminal Procedure, 1973 or any other law for the time being in force, it is expedient to direct any person to give measurements under this Act, the Magistrate may make an order to that effect and in that case, the person to whom the order relates shall allow the measurements to be taken in conformity with such directions
- Section 6(1) : If any person who is required to allow the measurements to be taken under this Act resists or refuses to allow taking of such measurements, it shall be lawful for the police officer or prison officer to take such measurements in such manner as may be prescribed.
- Section 6(2) Resistance to or refusal to allow the taking of measurements under this Act shall be deemed to be an offense under section 186 of the Indian Penal Code.
- Section 2 (c) "police officer" means the officer-in-charge of a police station or an officer not below the rank of Head Constable.
- Section 4(2) :The record of measurements shall be retained in digital or electronic form for a period of seventy-five years from the date of collection of such measurement:
- 4. (1) The National Crime Records Bureau shall, in the interest of prevention, detection, investigation and prosecution of any offense under any law for the time being in force, (a) collect the record of measurements from State Government or Union territory Administration or any other law enforcement agencies; (b) store, preserve and destroy the record of measurements at national level; (c) process such record with relevant crime and criminal records; and (d) share and disseminate such records with any law enforcement agency, in such manner as may be prescribed.
- Section 4(2) : Provided that where any person, who has not been previously convicted of an offense punishable under any law with imprisonment for any term, has had his measurements taken according to the provisions of this Act, is released without trial or discharged or acquitted by the court, after exhausting all legal remedies, all records of measurements so taken shall, unless the court or Magistrate, for reasons to be recorded in writing otherwise directs, be destroyed from records.
- Section 2(b) : "measurements" includes 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 section 53 or section 53A of the Code of Criminal Procedure, 1973
- Section
4. (1) : The National Crime Records Bureau shall, in the interest of
prevention, detection,
investigation and prosecution of any offense under any law for the time being in
force:
(a) collect the record of measurements from State Government or Union territory Administration or any other law enforcement agencies;
(b) store, preserve and destroy the record of measurements at national level;
(c) process such record with relevant crime and criminal records; and
(d) share and disseminate such records with any law enforcement agency, in such a manner as may be prescribed. - Origin |National Crime Records Bureau'
- 2017 SCC OnLine Bom 8600
- (2018) 1 SCC 809
- Justice K.S. Puttaswamy (Retd) vs. Union of India, W.P. (Civil) No 494 of 2012, Supreme Court of India, August 24, 2017.
- Criminal Identification Bill
Follows Similar Unsuccessful, Discriminatory Laws Elsewhere' (The Wire)
- Section 161(2) Such person shall be bound to answer truly all questions relating to such a case put to him by such officer, other than questions the answers to which would have a tendency to expose him to a criminal charge or to a penalty or forfeiture.
- Section 6 of the Criminal Identification Act, 2022.
- Privacy breach: Andhra Pradesh cops take biometrics of night commuters, The Times of India, Feb. 9, 2022,https://timesofindia.indiatimes.com/city/vijayawada/andhra-police-collectscommuters-fingerprints/articleshow/89440399.cms (last visited Mar 24, 2023).
- Section 4(3) & 5 of the Criminal Identification Act, 2022.
- Section 6 (2) Resistance to or refusal to allow the taking of measurements under this Act shall be deemed to be an offense under section 186 of the Indian Penal Code.
- Section 4(2) of the Criminal Identification Act, 2022.
- Section 4 (1) of Criminal Identification Act, 2022.
- Data protection and privacy laws | Identification for Development, https://id4d.worldbank.org/guide/data-protection-and-privacy-laws (last visited Mar 27, 2023).
- Golden Data Law, What does "purpose limitation" mean under EU Data Protection Law?, Golden Data (2019),https://medium.com/golden-data/what-is-purpose-limitation-under-eu-data-protection-law-fff4406ffe6 (last visited Mar 27, 2023).
- Section - and language if gap then mention law is silent (in text)
- Section 3 of the Criminal Identification Act, 2022.
- 978 (4) SCC 409
Award Winning Article Is Written By: Mr.Kalash Jain & Harsh Shrivastav
Authentication No: JU353112230956-14-0623
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