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Analysis of The Criminal Procedure (Identification) Act, 2022

The Criminal Procedure (Identification) Act, 2022 was passed by the Parliament in April 2022 which replaces the Identification of Prisoner's Act, 1920 that allowed police officers to take measurements of the people who were convicted, arrested or were facing trials in criminal cases.

The Criminal Procedure (Identification) Act, 2022 gives legal sanction to the police officers to take biological and physical samples of the people accused of the crimes and those of convicts as well. Section 53 and 53A of the CrPc (Code of Criminal Procedure) 1973 allows the police to collect data.

The Data which can be collected includes:
  • Finger, Palm-Print & Footprint Impressions
  • Photographs
  • Iris and Retina scans
  • Physical and Biological Samples
  • Behavioural Attributes

The measurements are to be recorded by a police officer or a prison officer. A police officer is the officer-in-charge of the police station or an officer whose rank is not below the rank of Head Constable. Prison officer is the officer whose rank is not below that of the Head Warder.

There shall also be a record of measurements which are to be stored in digital format for a period of 75 years from the date of collection of said measurements. For example- If the measurements of a criminal 'X' were collected on 1st Jan 2030, then those measurements must be stored digitally till 1st Jan 3005.

It is to be noted that if a person has not been previously declared guilty of an offence under any law with any term of imprisonment and under this Act has been subjected to collection of measurements and is later:
  1. released without conducting any trial or
  2. discharged or
  3. acquitted by the court after utilising all the existing legal remedies, the records of measurements so far collected of the concerned individual shall be destroyed unless and until the court or a Magistrate gives reasons in writing not to do so.
The National Crime Records Bureau in the interest of detention, investigation, detection and prosecution of an offence under any law for the time being shall be in charge of collection of measurements records from the state governments/union territory administration/other law enforcement agencies. NCRB is also required to store, preserve and destroy the measurement records at the national level. It also has the task of processing the records with relevant crime and criminal records and also share and disseminate the relevant records with any of the law enforcement agency mentioned above.

"The State Government and Union territory Administration may notify an appropriate agency to collect, preserve and share the measurements in their respective jurisdictions."[1]

According to The Criminal Procedure (Identification) Act, 2022, if a person is convicted with an offence punishable under any law which is in force at the time of committing of the offence or a person is arrested in connection with any offence that is punishable under any law which is in force at the time of committing of that offence or a person is detained under any of the preventive detention laws of the country.

Or a person under Section 117 of the Code of Criminal Procedure, 1973 is required to give security due to his good behaviour or maintain peace for any proceeding under Section 107,108,109 of the Code of Criminal Procedure,1973 shall allow his measurements to be recorded by a police officer or a prison officer in a manner as prescribed by the Central or State Governments.

If the offence committed under any law which is in force at the time of committing of the offence is not an offence against a woman or a child or the period of imprisonment as punishment of the offence is less than 7 years, then the individual concerned may not be obliged to allow collection of his biological samples under the provisions of this Act. Therefore, biological samples are to be collected for offences against a woman or a child or for offences where the period of imprisonment is 7 years or more.

The Act under Section 6 sub-clause 1 allows police officers (officers whose rank is equal to or above as that of a Head Constable or officer-in-charge of the police station) to take measurements of those individuals who resist or refuse to allow collection of their measurements in a manner which may be prescribed. It is to note that any act of resistance or refusal towards the collection of measurements shall be considered an offence under Section 186 of the Indian Penal Code. Section 7 of The Criminal Procedure (Identification) Act, 2022 states that there shall be no suit or any proceeding against any person who in good faith does or intends to do anything under this Act or any other rule.

Section 3 of the Act deals with the manner of taking measurements. Sub-Section (1) of section 4 deals with collection, preservation, storing of the measurements and also their sharing, dissemination, disposal and destruction of records of measurements.

Comparison with the Identification of Prisoner's Act,1920

The new Act, that is, The Criminal Procedure (Identification) Act, 2022 broadens the scope of measurements taken to identify a criminal. Under the colonial law- Identification of Prisoner's Act, the measurements which were allowed were merely finger and foot impressions and photographs. However, as we noted earlier, the measureable quantities of an individual now include palm-print impressions, iris and retina scan, behavioural attributes like signatures or handwritings and even physical and biological samples which include blood, semen, hair etc.

According to The Identification of Prisoner's Act, 1920, measurements were to be taken of only those convicts or arrested people who committed crimes where the punishment was rigorous imprisonment of one year or more, but the new act changes that and now people who are convicted or arrested for any offence shall give their measurements.

There is one exception to note that biological samples are to be collected only when crimes against women or children are committed or when the offence has a punishment of minimum 7 years of imprisonment. The new Act also allows collection of data from people who are detained under any preventive detention law.

Earlier, only the investigating officers, officers in-charge of a police station or an officer whose rank is of sub-inspector or above were allowed to take measurements and collect data of the convicts or arrested people but under the new law, the Head Warder of a prison is also allowed to collect the data and measurements in addition to previously mentioned authorities. According to "The Identification of Prisoner's Act"[2], a Magistrate was also given clearance for direct collection of data, however.

The Criminal Procedure (Identification) Act, 2022 allows a metropolitan or judicial magistrate of first class is allowed for the same. In case, the person convicted or arrested or detained is required to maintain good behaviour or peace, an Executive Magistrate may also collect the data and measurements.

Under "The Identification of Prisoner's Act, 1920", when any person was acquitted or discharged or was released without any trial, all the measurements which were collected or recorded were to be destroyed or handed over to the person acquitted unless the court or the District Magistrate or the Sub-Divisional Officer for reasons which should be recorded in writing (also in the case where a person is released without trial).

Significance and Issues of the Act
The first and foremost significance of the act is that the new law makes collection of measurements more exhaustive while also improving the efficiency of investigation of crimes. The police officers, now have access to a ton of information regarding the convicts or arrested persons which will help them to track the criminals faster and increase the conviction rate.

The act also introduces the use of modern technology in the process of recording and collection of measurements of convicts or arrested people. This is important since India as a country needs to step-up to the global level in terms of identification of criminals and renewal of a colonial-era law was necessary for this change.

The use of modern technology in advanced countries offer credible and accurate results, thus giving all the more reason to make such provisions. With the use of modern technology, the collection of measurements can be made swifter while making it easier to store and preserve and access the records of measurements.

The "Identification of Prisoner's Act, 1920, only allows a handful of persons whose measurements can be taken so, it was deemed inevitable to expand the "ambit of persons" and the new law excels in doing so. Earlier, only people who were convicted or arrested for offences with punishment of one-year imprisonment or more were required to have their measurements collected. The new law broadens this to any offence with an exception pertaining to biological samples as discussed earlier. Thus, the new act successfully expanded the "ambit of persons".

Now dealing with the issues of the Act, the first issue is that the Act may violate the Right to Privacy guaranteed under Article 21 of the Indian Constitution and Equality as well. Since the data can be stored for 75 years from the date of collection, it raises some concerns over the data protection of records of measurements.

There is no mention of proper safeguards for protection of records of measurements which are a pre-requisite whenever dealing with sensitive information and with the absence of a Data Protection Act, this concern is all the more valid as the private data of convicts or arrested persons or detained persons is prone to misuse by the law enforcement authorities. The Act also fails to satisfy the doctrine of proportionality as laid down in Puttaswamy judgement.

The law does have legitimate aim but it fails in the remaining 3 prongs of proportionality. The Act also does not provide any safeguard against sharing the sensitive information to other parties like Aadhar, CCTNS, etc. This creates the possibility of multiple databases being linked and infringing upon the person's Right to Privacy.

Under the Identification of Prisoner's Act, 1920, measurements were taken of those convicted or arrested for offences with punishment of one-year imprisonment or more, the new law, now allows collecting measurements of people for any offence which may also include petty crimes.

This creates a possibility of over-burdening the systems and databases used for collection and storage and preservation of the records of measurements, not to mention that such a provision is likely to create an abuse of law in lower levels and may lead to mass surveillance. It is unclear as to why such drastic measures were taken to "identify" each and every person who has been convicted or arrested. Also, since these records are to be stored for 75 years, the law deems disproportionate.

Another issue is that many terms in the Act have been left undefined which leads to ambiguity. The failure to define terms like "analysis" of biological samples, the Act opens up a horde of possibilities for the government to do whatever it wishes to with the records of measurements. Since the biological samples which are to be collected have not been clearly stated, there lies a possibility of collecting samples and storing them for 75 years which may not even turn out to be useful for the investigating officers to identify the persons accused and would just be a mere waste of government resources and time.

For example, let's say biological samples include DNA profiling and while collecting measurements, the officers in-charge collect DNA codes which do not or cannot aid the said officers in the investigation, this would very well result in waste of resources as those records would be stored for 75 years from the date of collection.

Another issue is that there is no mention of any requirements for the management of records of measurements which are to be collected. Given the quality and quantity of resources in rural areas, it would be difficult to implement the law and establish modern-day technological management systems in villages and rural areas which does not come without the mammoth task of educating the police officers and officers in-charge regarding the collecting of measurements, as to how to collect the measurements and how to store those in the databases and more importantly, how to destroy the records.

The lack of regulation creates a need of oversight for the proper functioning of the collection of measurements and the working of database, which raises the question that do we really need this database?

Another issue with this Act is that the standard of collection of measurements is left at the discretion of the states and NCRB only administers the management and maintenance of the database, the quality of measurements to be collected should be in consonance with the standard of quality as prescribed by a team of forensic experts.

There is a need of standardised procedures and rules governing the integrity of measurements to maintain a uniform database for the entire nation. NCRB must come out with a set of rules and a set of protocols to ensure that uniformity is maintained in the database and that the database just doesn't become a random collection of measurements from people across India. All of this sounds easy on paper but is actually a difficult task since we are talking about developing standards of measurements which should be universally accepted by all the states, which is a mammoth task in itself.

Another issue with the Act is that it allows state governments and union territories to notify a law enforcement agency to collect, preserve and share the records of measurements. Since the act does not provide any restrictions for the same, there lies a possibility of such sensitive information be shared to a private entity which would lead to a private agency performing sovereign function of the state. This may lead to delegation of state powers to a private entity and can have implications of a nature that may hinder the state's authority or obligation to deliver justice.

There lies yet another issue of excessive collection and storage. The Act assumes that a previously measured evidence will be useful in determining the guilt of the same person in a subsequent offence. This reasoning is flawed since there is no possible way to create a distinction between a piece of evidence which can be considered relevant or useful in identifying the person accused and one that cannot.

The Act bases the recording of measurements on predetermining the evidence which will be useful in identifying the person accused. This nullifies the need to create a database as the data collected may not even be used for the identification of the person accused. The current deficiency of resources and standards which, as of now, pertain in the forensic examinations cannot be exterminated with a humongous and extensive database that claims to assure better criminal investigations.

The database may, in fact, serve as a source of unreliable information during criminal cases and identification proceedings that may prolong an already slow process.

Author's Views
It is evident that the new law is aimed to improve the identification procedure in the country with the help of modern technology but improvement and progression should not come at the expense of individual rights. The Act is indeed a significant one since the use of modern technology will in fact make the process of identification of persons accused swifter and more efficient. However, it doesn't come without a fair share of problems, all of which needs to be addressed as quickly as possible.

The State has highlighted that the Act is important for protecting the national interest as the Act seeks to help in solving crimes and maintain public order in the society, which is all very true but such protection should be balanced with the fundamental right to privacy and the infringement caused on such rights should be proportional and not unjust. The measurements which are to be collected under the Act are sensitive in nature and demand a higher level of protection than any other form of personal data.

Since the Act broadens the ambit of data which can be collected for the purpose of identification, any mishandling of the records of measurements and any possible leak of data like biological and physical samples holds enough relevance to cause considerable damage to the victim of the leak. To avoid such a fiasco, a Data Protection Bill becomes need of the hour, however, one such Bill was withdrawn from the Parliament as many amendments were proposed and experts are speculating that a revised Bill may be introduced in the Winter Session.

There also lies a possibility of police officers coercing the persons accused to collect measurements as instances of police brutality upon under-privileged and oppressed communities are not uncommon in a country like India.

That being said, The Act does have some positive points in its favour. The Act will definitely help in reducing the crime rates all over the country as it will make it easier for the police officers to track down habitual offenders.

Criminal masterminds often change their mode or style of operation, they use different strategies to deceit the police officers, with the use of measurements recorded with modern technology as listed under the Act, the investigating officers will now have greater ease in identifying the criminals since their records will be easily accessible. We cannot disregard the Act solely on the basis that it is prone to misuse as it is not the only one under this umbrella. Reformative steps proposed through the Act were overdue for a long period of time to replace the existing obsolete laws prevailing in the country.

The author is of the opinion that the Act is a significant step towards advancements of the Indian society but needs some heavy amendments.

The government needs to address the valid concerns of the opposition and resolve the prevailing issues like:
  1. Infringement On The Right To Privacy
  2. Ambiguity Of The Terms Used In The Act
  3. Ensuring Proper Safeguards For The Records Of Measurements
  4. Lack Of Protocols While Collection Of Measurements And Many More.
The government must resolve these issues as quickly as possible otherwise the country may witness the darkest time of democracy and a miscarriage of justice.

The Criminal Procedure (Identification) Act, 2022 was passed by the Parliament earlier in 2022 which replaced the "Identification of Prisoner's Act,1920". The Act authorised taking measurements of convicts or persons arrested or detained persons or of people who are currently facing trials under criminal cases for the purposes of identification.

The scope of measurements earlier was restricted to finger and foot impressions and photographs which was broadened to include physical and biological samples, finger, palm-print and footprint impressions, iris and retina scans and behavioural attributes which may include handwriting. The Act also increased the "ambit of persons" who are allowed to take measurements, as discussed earlier in this paper.

The measurements collected are to be recorded in a database for 75 years from the date of collection. The Act is a much-needed reformation for the Indian society as the use of modern technology for the purposes of identification of persons accused will place India at the global standard of identification of criminals. Many developed countries use modern technology for the identification of convicts or the persons accused as they offer credible and accurate results which makes the investigating process easier and swifter, therefore, it makes sense for a developing country like India to introduce a law which aims for the same cause.

That being said, the Act does raises some concerns which need to be addressed for protecting the rights of the common man. The Act fails to address the need of proper safeguards and protocols for protection of records of measurements which can be termed as sensitive information, considering the records will contain physical and biological samples of the persons accused or convicts or persons detained. Other issues of the Act have been discussed earlier.

To resolve the issues of the Act, the Government should focus on introducing a Data Protection Bill which safeguards the sensitive information of the general public. The government ought to work towards giving clear definitions to ambiguous terms in the Act. Furthermore, there is a need to spread awareness among the authorities involved in the rural and backward areas towards the management and day-to-day handling of the modern-day technology that is to be used while collecting measurements.

The government should also release a set of rules and protocols to guide the investigating officers in setting a standard of measurements collected, so that uniformity is maintained in the databases all over the country.

The government also needs to address the concern of delegation of state power to private entities, as private sensitive information of the public cannot be shared with any private entity because this could hinder state's authority of delivering justice. To conclude, The Criminal Procedure (Identification) Act, 2022 is a noteworthy initiative of the government to reform the criminal laws of the country but the Act needs to be amended so that it doesn't hamper the interest of general public and violate their fundamental rights. The Act will surely help in improving the efficiency of the investigating agencies while also increasing their effectiveness provided the issues are resolved.

  • The Criminal Procedure (Identification) Act, 2022
  • Identification of Prisoner's Act, 1920

  1. The Criminal Procedure (Identification) Act, 2022 s 4(3)
  2. Identification of Prisoner's Act, 1920

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